Studies in Law, Vol. V [5, 1. ed.]

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VOLUME

STUDIES

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IN LAW

EDITED ON BEHALF OF THE FACULTY OF LAW BY

BENJAMIN

AKZIN 1

JERUSALEM,

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CONTENTS Page EDITOR’'S

PREFACE

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LAS SU

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and Legislation Today.

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N. FEINBERG: The Legal Validity of the ‫ו‬‎ ar Concerning’ Minorities and the Clausula rebus sic stantibus . . .

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R. LAPIDOTH: Les Rapports et le Droit Interne

Entre le Droit International Commun en Israél »

192

M. ZOHAR: Modern Trends on Israel’s Military

in Military Law Justice Law +

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Z. WARHAFTIG: and in State

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E. BAKER: Statutes

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EDITOR’S

PREFACE

Following upon the earlier volumes of the Scripta Hierosolymitana, dedicated respectively to classical and hellenistic studies, to medieval and modern thought and literature,

to economics

and

social

sciences,

and

io

the

Dead

Sea scrolls, this latest volume of the series contains contributions to legal science written by several among the teachers of the Law Faculty of the Hebrew University. It is regretted that lack of time and prior research committments have prevented others among the Faculty’s teachers, the editor included, from participating in the present volume. The contributions published presently do not purport to represent a systematic exposition of a single field or problem of law. They are rather a collection of essays dealing with different aspects of Israeli or comparative law or of legal history, in keeping with the authors’ fields of specialization and their individual research interests. It is believed, however, that for all its variegated contents or just because of this, the present volume will offer something of value to every jurist who may happen to read it and will enrich the international literature on the subject. In addition, the juxtaposition of these essays may serve to illustrate the variety of scholarly interests to be encountered among the members of the young — less than nine years old — Jerusalem Law Faculty. The authors of the papers included in this volume are, in

alphabetical

order:

H. E. Baker,

Deputy

President

of the

Jerusalem District Court and teacher of legal draftsmanship and interpretation; Dr. Y. Dror, Instructor in public administration; Dr. N. Feinberg, Professor of internationa! law and relations and associate of the Institute of International Law; Dr. S. Ginossar, associate professor of civil and criminal procedure; Dr. R. Lapidoth, Instructor in international law; Dr. G. Tedeschi, Professor of civil law; Mr. Z. Warhaftig, Member of Knesset and teacher of Jewish Law; Dr. R. Yaron, Lecturer in Roman Law; Colonel Dr. M. Zohar, Advocate-

General of the Israeli Defense Force and teacher of military law. The editorship of the volume has been undertaken by Dr. Benjamin Akzin, Professor of constitutional law and

political science, in his capacity as dean of the Law Faculty. The editor is particularly glad to note that no less than three of the volume’s contributors — Dr. Dror, Dr. Lapidoth and Dr. Yaron,

are graduates

of the Hebrew

University

who

have recently joined the ranks of its teachers. In view of the non-systematic character of the volume, ranging

as it does

over

the entire

field of law,

it has

decided to dispense with a table of cases

and statutes

with

for

an

index.

A

table

of abbreviations

the

been

and

principal

Israeli and English sources has been prepared by Professor S. Ginossar, and grateful acknowledgement is hereby made to him. BENJAMIN

AKZIN.

ABBREVIATIONS A.L.R. art.; arts LA C.A. C.A.D.C. C.D.c. C.P.R. Cr. Cr. A. Cr. A.D.C. Cr D.C. C.J. Ct.L.R. D.C.

Annotated Law Reports (1943-1947) article; articles Civil Civil Appeal Civil Appeal District Court Civil Case District Court Civil Procedure Rules, 1938 Criminal Criminal Appeal Criminal Appeal District Court Criminal Case District Court Chief Justice

Ha.

Haifa

Hamishpat

Collection of Judgments, published in Hebrew (1947-1949) Periodical, published by the Israel Bar Association Collection of Bills presented to the Knesset

Hapraklit Hatsaot

Hok

Hed Hamishpat HG 1. Jm. Kitvei Amana Kovets Hatakanot

L.A. L.C. L.C.A. L.Q.R. L.R.T.A.

M.C.P.R. Mo.

n.; nn. NS.

Current Law Reports District Court

(Levanon)

(1937-1942)

Periodical published in Jerusalem High Court Cases Justice Jerusalem International Agreements and Treaties of the State of Israel Rules and Regulations (Subsidiary Legislation) of the State of Israel Land Appeal Land Court Case Law Council Appeal Law Quarterly Review Law Reports of the Tel-Aviv District Court (1937-1942) Magistrates’ Courts Procedure Rules, 1940 Motion foot-note; foot-notes. New Series

0. KE.

Order Pesakim, Collection of Judgments, published by the Israel Bar Association

p-; PP: P.C.A. PD,

page, pages Privy Council Appeal Piskei-Din, Law Reports of the Israel Supreme Court, published by the Ministry of Jutsice Pesakim, District Court Judgments

P.D.. P.L.R. PEU

Te tt: R.S.C. SA CRUE

Palestine

Law

Pesakim,

Supreme

Reports

rule; rules (English) Rules

(1922-1947)

Court Judgments

of Supreme

Court

Annotated Supreme Court Judgments (Apelbom) (1937-1942) Selected District Court Judgments (1943-1947)

S.D.C. sec.; secs. section; sections. Sefer Hahukkim Collection of Laws of the State of Israel as Tel-Aviv

Judgments of foreign courts are quoted as usually done the country concerned.

in

PRIVATE

LAW

AND

LEGISLATION

TODAY

By G. TEDESCHI

CONTENTS 1.

2. 3.

The

thriving

legislator’s

4.

5. 6. 7.

of unenacted

as a source 9. 10. 11. 12.

as

a result

of legislative

inactivity,

domain,

These aspirations do not seem capable of being fulfilled as long as economics are being regulated by the State or even by supranational bodies. Lawyers’ opinions do not constitute, nowadays, a single ideology accepted by the whole community. The result of the said aspirations would not be a “non-political’’, but an anti-democratic and conservative law. Parallel with Savigny. Legal science is unlikely to be an efficient safeguard against tyrannical legislation;

8.

law

or in spite of legislation. The growing activity of modern legislatures and the invasion of the private sphere by administrative law. The reaction: the aspirations to exclude private law from the

The

the tendency

towards

restrictive

interpretation

of trouble.

advantages

of enacted

law over

judge-made

law.

Spontaneous law and legislation. Legislation and legal science as instruments of international unification of law. The proper relation between legislation and legal science. Some remarks about judicial attitudes towards legislation in Israel.

3 ve The explanation for the thriving of unenacted law is to be

found as a rule either in the inactivity of the legislator or in the dissatisfaction of public opinion with his rules. From a purely dogmatic point of view, this distinction is liable to be blurred where the silence of the legislator with regard to a given relationship is tantamount to non-recognition, But historically, the importance of the distinction between rules of law which originated praeter legem and those which originated contra legem is obvious. The extreme manifestation of legislative inactivity is of course to be found during periods in which there was no

10

G.

TEDESCHI

legislation at all. Law-making necessarily had to take other forms. Moreover, there are the religious systems of law which claim to have their origin in divine revelation, and which can acknowledge nothing that could properly be called legislation — no process by which anything is added to the laws of the divine law-giver, and certainly none by which anything is detracted from them. Here too, therefore, in so far as there

is any law-making at all, it cannot take the form of legislation proper. On the other hand. even where legislation was forthcoming in the past, it was generally insufficient. For the legislator’s activity was sporadic and haphazard; it was ‘chance legislation’, at intervals, touching upon few and isolated topics only. Circumstances such as these naturally resulted in the thriving of unenacted law, e.g. custom; the ‘science of law’, in the sense of jurists’ opinion (sometimes in the form of responsa of jurists officially recognised as ‘authorities’) or of ‘judgemade law’, that is, law created by the judiciary in the act of adjudicating upon concrete cases; or the law made by other organs of the state whose original and official functions were not exactly legislative, such as the Roman praetor or the English Chancellor. Taken as a source of law, the science of law cannot invariably be regarded as a rival to legislation. On the contrary, it seems indisputable that legislation as such can never be the sole source of law in any legal system; for no system will ever be so completely free from lacunae as to be able to dispense altogether with the creative activity of courts and jurists in general. Any illusion to the contrary which may have been entertained by the authors of some codes or by commentators of recent codifications, appears utterly unfounded when critically examined. Where existing law, correctly interpreted according to the rules of the system, does not cover a given situation, and the silence of the legislator cannot be regarded as a ‘negative provision’, it 18 both permissible and proper to supplement its deficiencies from other sources, expressly or impliedly indicated by the system; usually from the creative activity of the judges. For even

PRIVATE

LAW

AND

LEGISLATION

11

where the system is held out as complete and exhaustive by the legislator himself it is nothing but make-believe;

a mere

fiction which constrains us to speak of the creative activity of the judges in terms of ‘exposition’, ‘interpretation’, or ‘re-interpretation’. As long as creative judicial decisions cannot be dispensed with by the system — irrespective of whether they are recognised as such or, ficticiously, go under another name — one cannot speak of rivalry, but must necessarily regard them as constituting an additional and essential source of law alongside of legislation, albeit only a secondary one. Real rivalry occurs where legislation and the science of law appear as possible alternative sources of law: where the enacted

order

(whether

possible behaviour impose a different We have dwelt sometimes that the

or

negative

positive)

exists

as

a

norm, but the courts in fact adopt or order. on the obvious only because it happens legislator says, as it were: ‘I am the first

and I am the last’, and ‘there is none else’ (Isaiah 44,6; 45,5);

that is to say, it is from his enactments, and only from his enactments, that the judge is to draw all the law (e.g. art. 12 of the Italian Civil Code) — as if this were possible. And the products of judicial legislation are, on the other hand, almost

invariably presented as interpretations of the law or as a mere filling of gaps in the law in accordance with the provisions of the system, and this even where judicial activity is in fact intent on changing or frustrating the enacted order (or, in the absence of an enacted order, on making innovations which are against the spirit of the system and not in accordance with its provisions for the filling of gaps). Similar to this is the depreciation of the creative aspect of the judges’ activity by passing off the law made by them as ‘custom’. This is done by the ‘orthodox theory’ with regard to the judge-

made

law of England,

customs of the realm’; systems. Furthermore,

to be based

on

divine

which it relates to the ‘immemorial similar devices are found in other in those systems which claim

revelation,

jurists and

judges

often

On this subject generally, and on the Roman-canonical doctrine of 1. custom in particular, see the well-known works of E, Lambert, especially

Sur la fonction du droit civil comparé,

Paris, 1903.

12

G. TEDESCHI

justify their innovations by basing themselves on interpretations of sacred writings or on an oral tradition allegedly delivered together with the written one. All this clearly shows that judges and jurists alike really admit that it is not part of legitimate function of the science of law to make law; and where law in fact is made by it, it is considered necessary to obscure the fact by relating it to some kind of authority, however far-fetched or illusory.

2} Since the time of Savigny’s polemics against legislation and codification, both have continued to progress in scope as well as in importance. Codification has taken place in nearly all countries, whether in the form of national codes or by the adoption of foreign ones; and in some countries the existing codes were revised, or replaced by new ones. England, it is true, was not greatly affected by this development. It might therefore be said that if Savigny has failed in his campaign against legislation and codification, so did Bentham

and Austin

in their opposite campaign in England. But it cannot be denied that considerable changes have taken place in England too. There has been a vast increase of statute law, not confined to

mere ordinary, occasional legislation, but comprising enactments in the nature of consolidations and codifications. Indeed, English codifications differ from those on the continent, both because of the different technique of legislation and because of the incomplete abrogation of prior sources of law (common law provisions remain in force so far as they are not expressly derogated by enacted law). But the developments

under

consideration

show,

at least,

that

with

regard

to the more important reforms the initiative has passed from the judges to the legislator; that it is now beginning to be recognised that the achievements of statutory legislation are more final than those of judge-made law; and that clarity and systematization are likely to be attained only through legislation. A notable change has taken place in the attitude of the judges themselves. Whereas, formerly, they regarded statutes as ‘uninvited guests’ and themselves proceeded to introdu ce such changes as they thought necessary, today they are more

PRIVATE

LAW

AND

LEGISLATION

13

reluctant to tamper with the law and frequently invite the intervention of the legislator’. In addition to this there has been a marked softening of the principles as to the restrictive interpretation of enacted law, and in so far as they are still applied, they are the objects of ever-increasing criticism. Nor should we ignore the fact that even those branches of English law which were least affected by the industry of the legislator — the core of the traditional system, such as the law of contract and torts — were nevertheless reduced to codes by English lawyers; not indeed for England itself, but for some of her dependencies. And though it does not look as if these codes are, on the whole, likely to be introduced at home in the near future, it is worth noting that some of the provisions first formulated in them were later adopted in England. Authorities like Salmond have no doubt that the whole of English law will ultimately be 000160 . As to the slowness

of the process

leading thereto,

and its uncertainty,

some ascribe it to a lack of interest on the part of Parliament, others to the legal profession’s chronic dislike of change“. It is clear that we are not concerned solely with the volume of legislation or with the legislative make-up to be worn by existing law. Legislation since the French Revolution has very frequently brought about momentous changes; it has served as an instrument,

unparalleled

in its efficiency, for the intro-

duction of fundamental and far-reaching reforms. It is true that even in our times there have been striking developments in the laws of some countries without the help of legislation and, as it were, unobserved by the legislator; such as the rise of trade unions and trusts, the evolution of the collective contract,

060.5 But

even

in these

cases

the results

were

not

complete, nor could the achievements be regarded as permanent, until they received the sanction of the legislator; and 2. Cf. Friedmann, Legal Theory, 2nd ed., London 1949, p. 314f.; C.J. Hamson, in Law Reform and Law Making (A Reprint of a Series of Broadcast Talks), Cambridge 1953, p. 7ff.; a different view is taken by Goldschmidt, English Law from the Foreign Standpoint, London, 1937, p. 29f.

3. contra

4.

Cf. Salmond, Goldschmidt,

Cf.

D.

Lloyd,

Jurisprudence, op.

cit.,

“Codifying

Problems (1949), p. 155 +. 5. Cf. Gurvitch, Sociology

ed., 1947,

10th

§ 54, p. 167.

But

cf.

p. 28 ff.

English

of Law,

Law’,

London

in II

1947,

p.

Current 120.

Legal

14

G. TEDESCHI

where there was opposition on his part, it was fatal to the survival of these institutions. It is further true that in the countries of codification the courts would occasionally take the initiative of creating new law. Where the codes of some continental countries became antiquated because of the vast changes which occured in the social and economic spheres — and indeed some of these codes were already antiquated at the time of their enactment — judges felt constrained to introduce new ideas and new institutions into the system. In this context one is usually reminded of the far-reaching innovations of French courts (e. g. with regard to ‘unfair competition’, the liability of drivers, industrial accidents, etc.) and of German courts (e.g. the ‘revaluations’ on the masis of the principle of bona fides after the inflation which followed the First World War, and the changes wrought in the contract of employment on the basis of the doctrine of Betriebsrisiko) °. But on the continent, even those who show the greatest respect for the achievements of judicial creation

do not regard

it as more

than

an imperfect

and provisional means for the reform of the law; and legal developments are not considered to be lasting and final unless ‘approved’ by the legislator’. And above all: on comparing the reforms of the last two centuries which were introduced by legislation with those which originated from the activity of judges, one finds that the former were far-reaching and fundamental, while the latter were more modest. We may mention, as examples of legislative reforms, the almost universal secularization of family law, the gradual discarding of patriarchal principles in the marital relationship (superseded by the principle of equality) and in the relationship between parent and child (where prevailing ideas put the emphasis on the well-being of the child, as against all other possible inclinations of parental control), and, generally, the changes in the legal position of women, in the status of illegitimate children, etc.; and as to property, its freeing from feudal bonds, after the French Revolution, and its subsequent transformation — as 6. T.

Cf. Friedmann, op. cit., p. 333. Cf. Colin & Capitant, Cours élém., 6th ed., 1930, p. 36 ff.

PRIVATE

LAW

AND LEGISLATION

15

well as the transformation of private law as a whole —

in

accordance with current social ideas, etc. Even in England legislation has brought about extensive reforms in a number of branches of private law, particularly in family law, the law of inheritance, and the law of property; reforms as to which there is general agreement that they would not have been effected without legislation. The activity of the legislator in the field of private law, particularly since the end of the First World War, has been marked by an unprecedented urgency, and has also shown a strong inclination to graft unto it more and more public law. Many of the accepted principles of private law have either been restricted in their application, paralysed, distorted or discarded, through the adoption of new principles, mostly administrative and fiscal. And even if we do not deny the importance of the social and economic aims, or the urgency of the needs which prompted the legislator’s interventions, it must be admitted not only that they obliterated conceptions built up by a highly cherished tradition over generations, but also that they caused the law to be removed, as it were, from the consciousness of the 60016. This for a number of reasons: first, because we are concerned with new phenomena which neither the public nor the profession have as yet assimilated; secondly, we are faced with institutions which are usually of a technical nature, and which are administrated by means of complicated bureaucratic machinery; and lastly, because, in some countries at least, the State is still regarded by many as something alien, a foreign body the interests of which are still more remote from each of them than those of their individual fellow-human beings. 3. This confused bustle of the legislator, this growing invasion of the sphere of private law by administrative law, is seen as a threat not merely to the predominance formerly enjoyed by private law, but to its independence and its very existence. It is hardly surprising, therefore, that it should call forth 8. See also Silberg, Chok Jerusalem, 1952, pp. 29—30.

U-musar

Ba-mishpat

Ha-ivri

(Hebrew),

16

G.

TEDESCHI

a reaction from some of the more celebrated exponents of private law — among them continental jurists who have long been inured to legislation and codification. Reference is made in particular to Vassalli’s paper on the ‘extraneity of private law to the State.’ * According to Vassalli we should aim at liberating private law from the State and at restoring it to the custody of the science of law, where

it resided

in Rome

(created

as it was

mainly by private jurists and the praetor), in the Moslem world, in the common law countries, and in France and Germany before codification. In this way the frenzied legislation of our times, which reflects a pursuit of private interests and passions”, will be brought to an end, and the law will no longer be the product of the momentary inclinations of the legislator. It will be reason, and it will respect the higher values which are at all times evolved by every society; it will not be an order imposed from above, but the fruit of that analytical and critical process characteristic of juristic and judicial thought ‘1. Vassalli would like to see the development of a legal environment where the legislator would be deposed and the science of law recognised as the pivot and principal source of private law ??.

As Vassalli does not recognise all commands of the legislator as law, his position is somewhat similar to that of the natural law school and the historical school. These schools, for all the difference between them, have this in common that

they do not recognise as law all commands issued legislator: the fact that the coin bears the imprint sovereign is not enough for either of them; they have its weight, as it were, and the quality of its metal. Of

schools, Vassalli

by of to the

the the test two

is nearer to the historical school because

of

9. EF. Vassalli, “Estrastatualità del diritto civile” (in Studi in onore di Antonio Cicu, vol. II, Milano, 1951). 10. The view that judges and academic lawyers are less swayed by private interests than legislators is also

taken

by D’Emilia,

quale fonte del diritto”, in Studia et documenta

especially

11.

p. 30f.

See also Pacchioni,

I, p. 33.

Diritto

historiae

“Sulla dottrina

et juris, 1945,

Civile italiano, 2nd ed., Padova,

12. With regard to public law, he agrees that Statutory should remain its source. See also Pacchioni, op, cit., p. 47.

1937,

legislation

PRIVATE LAW AND LEGISLATION

17

their common dislike of legislation. Moreover, the historical school in fact considers the direct creation of law by the ‘legal consciousness’ of the people as a thing of the past; for the present, rejecting the legislator, it would leave law-making to the science of law — as would Vassalli. In striving towards the domination of enacted law by legal

science, Vassalli also shows a certain affinity with the ‘freelaw’ school. Many of the adherents and spokesmen of this school have, indeed, denied that they ever intended the actual domination of legal science (and particularly of judge-made law) over legislation, and have insisted that they did not claim for the judge anything more than he always had, and needs must have: the function of filling gaps in the law.*** But in fact they wanted more than that; otherwise it would be difficult to understand why they went to such lengths in exalting the science of law and the judicial process as against legislation. A legal atmosphere such as that desired by Vassalli has actually been known in different places and times — as Vassalli indicates. Two examples, in particular, are worth noting. During the prevalence of the jus commune in some countries of continental Europe, only the law of the universal systems, of the Empire and Church, which alone were considered sovereign and independent bodies, was regarded as law proper (jus per excellentiam) ;whereas the individual systems of law, because they derived their validity from bodies which were only autonomous and whose powers were limited, were regarded as mere deviations from the general law and the true ratio juris — deviations which called for restrictive interpretations.** Moreover, not all commands of the rulers were regarded as law, but only those which laid down general norms, aiming at the welfare of the community as a whole; in other words, the validity of mere decrees issued by the legislature — of praecepta as distinguished from leges — was denied **. die um de droit

Kampf Der Flavius), (Gnaeus Cf. 11, Kantorowicz, 12a. Rechtswissenschaft, Heidelberg, 1906. See also Hauriou, Précis

constitutionnel, 1929, p. 236. 13. Cf. Calasso, Storia e Milano, 1938, I, p. 88f. 14.

Colorni,

L’eguaglianza

sistema come

della

limite

fonti

della

del

diritto :

legge

nel

comune, /

diritto

inter-

G. TEDESCHI

18

But it is particularly in the English tradition that similar attitudes and directions may be observed. (There are many English lawyers who long for codification on the continental model, but there are very few continental jurists who have a fancy for the atmosphere prevailing in the English system. It is this that makes Vassalli’s position so peculiar.) According to English tradition, only that part of the law which is derived from the common law (and from equity) is regarded as ‘true law’. It remains the core of the system and its backbone, notwithstanding a constant and ever-increasing stream of legislation; and it occupies a place in the curriculum of the law student far above that warranted by its present scope and importance. The principles of the common law are regarded as the imperishable part of the system; for the statutes, however many of them there may be, are only applicable to situations expressly within their orbit — according to a restrictive interpretation — and do not otherwise affect the validity of the Common Law. English tradition views statute law with disfavour for fear of the arbitrariness of the legislator. Though the statutes are regarded as part of the system, they are not looked upon as the most pure expression of law’. They are valid within the domain expressly covered by them, but are not given analogical application, nor do they as a rule receive an extensive interpretation. Moreover, as a result of the principle of stare decisis, the text of the statutes is very rapidly covered by a close web of precedents and thus sometimes even distorted. It follows from the above that there are a number of additional differences which distinguish the English attitude towards enacted law from that of the countries of codification. In these latter no middlemen are needed to interpret the law, it is plain to every man, and lawyers and laymen are essentially in the same posoition. But in England, the text of the enactment, before it is interpreted and applied in the courts, does not say much to anyone: it is silent until the judges — medio

e

Milano,

1946.

moderno

(estr.

dalla

Riv,

di storia

del

diritto

italiano),

15. “In the law but not of it’: cf. H. F. Stone in 50 Harv. L. R., 1936, p. 12ff. (and in The Future of the Common Law, 1937, p. 130 ff.). 16. “The surest construction of a statute is by the rule and reason of the common law” (Co. Litt. 2720(

PRIVATE

LAW

AND

LEGISLATION

19

who have the legal tradition ‘locked up in their breasts’ — make it speak, It is true that on the Continent too it frequently happens that an accepted construction tends to push the text of the law into the background. But such a construction usually has no more than a transient validity as against the text itself. In England the very opposite seems to be the case: the true and original meaning of the text is in time completely obliterated by the layers of precedents constantly heaped upon it. It is therefore not surprising that an English judge, when required to apply a foreign law, is not content with acquainting himself with the text of the law, but finds it necessary to obtain the assistance of a lawyer who has experience in the practical application of the law in its native country. Nor is it strange that the English lawyer will hardly ever venture to express opinions of his own as to the construction of a statute, but will as a rule confine himself to an account of the construction put on it by the courts, which he is not in the habit

of criticizing; whereas the judge has no scruples whatever in freely criticizing the statute itself —

a state of affairs very

different from that obtaining in the countries of codification. That a continental lawyer of Vassilli’s stature should be attracted to just such a legal atmosphere as the English is very remarkable indeed, particularly in view of the leading part played by him in the drafting of the new Italian Civil Code of 1942. 4. This aspiration to remove private law from the legislator’s domain and to place it in the charge of legal science (or into the hands of the judges, in particular), is not likely to be realized in our times or in the foreseeable future. Already Pacchioni, though he held opinions similar to those of Vassalli (he went so far as to call judge-made law the ‘true and only law’), observed that the rapid technical and economic revolutions of the last two centuries, and the resulting social conflicts, raised problems the sound and expeditious solution of 17. p.

35f.

Cf.

etiam

Lawson,

Rational

Strength

of

English

Law,

1951,

20

G.

TEDESCHI

which could not be left to the jurists and judges alone; and

that regulations by the Executive and an ever-growing volume of legislation were necessary in order to keep pace with these developments 5. Today in particular there seems to be little doubt that nothing will come of this aspiration for a private law extraneous to the State, inter alia because of the very development which gave rise to it, namely the irrepressible tendency

State to take a leading part in the economic

of the modern

life of the country, and to interfere with and manipulate private law. Not only in the countries which are ruled by

socialists, but also in those which claim to be opposed to socialism, the national economy is today planned and directed by the State

—

to a different,

but

always

marked,

degree.

There can be no doubt as to the relation between this and that gradual ‘administrativization’ of private law which produced the reaction under consideration. But as at present even the most ardent and resolute partisans of economic freedom do not profess to believe in an early return to economic liberalism, the possibility of passing or returning to a supposedly independent private law — one that is entrusted to the science

of law, to legal ‘technicians’,

manipulated question;

nor

by

political

would

functionnaries

it today

and not directed

—

be reasonable

is out

of

to expect

or

the that

consequences of such import be attached to the distinction between private law and public law, at a time when the distinction itself tends to become blurred. Indeed it is not inconceivable that the sovereignty of the State in the economic sphere will be limited in another way: that it will pass — together with regulation of private law (or part of it) — to supra-national bodies. That could happen in either of two diametrically opposed situations: if there were a relaxation of international tension as a consequence of which the existing international institutions could 6 strengthened, or new ones created; or alternatively if the tension remained and thus promoted the growth of hostile blocs within which certain powers would be surrendered to collective, supra-national, organs. But even if this should come 18.

Cf.

Pacchioni,

op.

cit., p. 44,

46.

PRIVATE LAW AND LEGISLATION

21

to pass, the economy would in all probability continue to be planned and controlled, and this again would entail a domination of legal life by the controlling organs: the law would remain an order imposed by an authoritative organ from above, that is to say, an enacted order. 5. On the other hand, even if we disregard the considerations to be expounded later, there remains the question whether the science of law or the judiciary are capable today of discharging that important function with which it is urged that they should be entrusted, i.e. the function of determining paramount standards or criteria for an independent evaluation of the legislator’s commands. To fulfill this function, it will not suffice to possess learning and technique, nor to have recourse to those technical principles of justice which oppose certain meanderings by the legislator (e.g. nemo judex in causa propria, audiatur et altera pars, the principle of non-retroactivity of at least some norms of law). What is needed is a real philosophy, a legal policy that would determine the fundamentals of good and evil for individual and society. In former times opinions used to be more uniform with regard to these fundamentals, and legal thought was far more representative of the legal consciousness of the people ®. That was the case because legal thought was closely bound to religious beliefs accepted by society as a whole, or to ethical and political doctrines which were not in dispute — at least not in the sphere of private law. It is clear that those times are past. At least since the French Revolution, serious differences of opinion and conflicts of interests in the society have been brought to light. In our times in particular, no agreement is to be found in any country (if we ignore those countries in which it is forbidden to voice disagreement). Within every community there are believers and non-believers, and they in their turn are split and divided among themselves by conflicts in social ideology which are sharply felt and emphasized. All these differences are re19. The view that legal thought is representative of the consciousness of the people is particularly taken by Puchta, Gewohnheitsrecht, I, p. 166; I, p. 0.

22

G.

TEDESCHI

flected in the attitude to the basic problems of private law, particularly those relating to property and the family. We are thus confronted not with the legal consciousness of the people — as the historical school assumes — but with a ‘struggle for law’ between conflicting social and religious beliefs. Jurists and judges alike would but be spokesmen for one doctrine or another, and could not — as, again, the historical school assumes— give expression to a store of commoa ideas *°, It is no valid reply to the above

that the situation thus

described merely reflects the evils of our age, and that there is

nothing in it which should deter us from preferring the science of law to legislation: for the law which is based on the doctrines of the learned calls for a more spontaneous general agreement and an ideological basis more acceptable to society as a whole, than that which is founded on the will of the legislator 5. In a democratic state the will of the legislator represents the will of the people (or of the majority), whereas the lawyers as a class do not represent it in respect of the ‘policy of the law’ anymore than economists as a class represent it with regard to economic policy. 6 Every doctrine which tends to disparage legislation for the benefit of the science of law, and which would entrust jurists and judges with the authority to sift legislative enactments in order to separate ‘good’ from ‘bad’ law and invalidate the latter, is in effect an anti-democratic doctrine. This is so at least at times and in places where legislation reflects the will of the people; the position may be different where legislation does not fulfill this function. There, enlightened lawyers (be they advocates as in Rome, or judges as in England)

who are

alive to the needs of society and are inspired by ‘the nature of things’ or by ‘reason’, not only tend to be comparatively 20. from tries 21.

In Israel we must add to these differences the differences of origin. But

see

contra

in legal De

education

Page,

A

according

propos

du

also those which to

the

jurists’

gouvernement

des

arise counjuges,

Bruxelles-Paris, 1931, p. 187: “...la loi . . . ne convient qu’aux époques de morale et d'opinion homogènes”,

PRIVATE LAW AND LEGISLATION

23

better makers of law, but are also not further removed from the population at large than their legislators. It is clear that a private law which is created — or approved — by ‘legal technicians’ is not by reason thereof ‘technical’ law (in the sense of non-political law, which is non-existant ??), but a law which reflects political and social values probably differing from those of present-day legislators supported by popular vote. This is singularly true in an age such as ours, marked as it is by sharp political differences which, unlike those

of

former

times, extend

to the

very

foundations

of

private law. Should decisions of economic policy be entrusted today to economists in their capacity as experts or should military or defence policy be placed into the hands of general staffs,

there

can

be

no

doubt

that

it would

result

in an

economic or military policy very different from that which is now pursued in accordance with the wishes of elected parliaments and democratically constituted governments. It has indeed often and truly been remarked that even ‘liberal’ economists, when in positions of authority, are nowadays constrained by circumstances to follow policies which go against their aspirations. But if they were free to follow their own doctrines and were not subjected to parliamentary supervision, one may assume that they would find it possible to act to a much greater extent in accordance with their private convictions and with the interests of the social class to which most of them belong. Nor can it be claimed that lawyers as a class are better qualified to represent the community as a whole, and that they should therefore have the last word. in the making of law: for lawyers are certainly not divided among the different social classes in the same proportions as the rest of the people; by reason of their very training they tend to prefer existing law — viz. the law which has been evolved by the past — and to regard it with something approaching a religious reverence as a dogma that cannot 6 affected by change; also their average age — and particularly 22.

Paris,

As

against

G. Ripert.

1925, passim

La régle morale

and especially p. 26:

dans

les obligations

civiles,

“plus on défend le pouvoir du

la puissance intellecjuge et 1911002156 de la jurisprudence, plus on éléve s of the same tuelle contre la puissance politique’. But cf, the admission

author in his p. 114, n. 44.

later

book

Les

forces

créatrices

du

droit,

Paris,

1955,

24

G. TEDESCHI

that of the more highly qualified ones —- naturally causes them to incline to conservative opinions *. Even if we were to take into account that law only which is created by the judges, and if we were to regard the latter as saints, high-minded to the extent of working against the interests and natural inclinations of their own social class and intent only on discovering the will of the people in order to fashion the law accordingly, even then it would be difficult to imagine how the judge would contrive to settle disputes which reflect a social conflict of ideas and interests. For instance, how would he decide cases arising from a clash of religious and secular ideas, or from the conflicting interests of employers and employees,

if he had to invent his own

rules for deciding

them? Where would he get the means and leisure necessary to enable him to ascertain the preponderance of public opinion? And even if all this were granted, the law made by him would still not be democratic law, for that must not only

conform to the wish of the people, but must also be made by the people themselves or by their political representatives. We may assume that a system grounded on legal science independent of enacted law, or not dependent on it overmuch, would succeed in resisting the prevailing tendency of public law to encroach upon the territory of private law; in other words, it would pursue a conservative policy. It is not a coincidence that Savigny’s diatribe against legislation and

codification should be re-echoed today —

though perhaps in

a slightly different form; for today, as then, far-reaching legislative changes are under way, changes which are likely to revolutionize the law against the interests and ideals of part of the population. Wittingly or unwittingly, Savigny rightly regarded the legislation and codification of his time as a powerful instrument by means of which fundamental changes in the structure of society could be brought about — or, as was done by the Code Napoleon, confirmed; and against this his deep-rooted conservatism revolted. Hence his endeavour to 23. Cf. etiam Laski, A Grammar of Politics, 4th ed., p. 572ff. The fact that the great English judges were conservatives was pointed out by the American judge Brandeis, See ₪. Goldman, The Words of Justice Brandeis, N.Y.. 1953, p. 118. Cf., in France, Ripert, op. ult. cit, p. 390, n. 163:

prudence

“C’est

aujourd’hui

qui le maintient”.

le législateur

qui bouleverse

le droit, la juris-

PRIVATE LAW AND LEGISLATION

5

perpetuate the law evolved by the past. And today legislation is again seen — and rightly so — as a means for the ‘gocialization’ of private law by way of ‘administrativization’. It is this development which the expulsion of the legislator from the sphere of private law is designed to prevent. But there is this difference, that for Savigny it was possible to be content with the then existing state of things, and he in fact went near to holding it up as ideal, regarding as he did reforms as a calamity and changes in the law as ‘hasty and ill-considered’ *‘; whereas

today,

in view

of the

constant

inroads

actually made by legislation, no defensive action would suffice, but a reaction would be necessary that would dislodge and expel the legislator from the positions which he has already taken. Not that we are at all inclined to regard all legislative trends of today as wholesome and agreeable. Who indeed,

being capable of some discrimination, could deny for instance the element of arbitrariness in the expropriation of private rights (whatever the form it takes) and the inequality in the imposition of economic burdens on the divers owners of property; the restraint and obstruction to which personal initiative and personal effort are constantly subjected; the growth of a clumsy — and often both annoying and inefiicient— bureaucratic machinery? But the ‘game of democracy’ requires that the sovereignty of the State be not trespassed upon by any social group or class, nor transferred or abdicated by the State itself, except to democratically constituted bodies — such as even international bodies could be — and that all efforts to remove imperfections and deficiencies (in so far as they can be removed without sacrificing the soughtafter social justice) should be made in a democratic manner, from within; that reason and law should spring from the conviction of majority opinion. If a country is to be a democracy, a ‘rule of judges’ * is therefore out of the question.

24.

Cf.

Savigny,

Rechtswissenschaft,

25.

On

Vom 2nd

this conception

Beruf ed., 1840,

see

unserer

Zeit

für

Gesetzgebung

und

p. 43.

particularly De

Page,

op.

cit.; see

also

G.

Cornil, “Autorité de la loi et autonomie de la jurisprudence” in Acta Academiae universalis jurisprudentiae comparativae, I, Berlin 1928, p. 110.

26

G. TEDESCHI

7. to obstruct the work of the tends law of science the When legislator (by means of a restrictive interpretation of statutes, by invalidating some of his enactments, or by extending to them but a qualified recognition), there is no reason to believe that it accomplishes thereby a successful purge of the law, ousting the element of the legislator’s arbitrariness only and leaving the rest of his work untouched. Whatever the motives or the aims of the representatives of legal science, they will not in practice succeed in achieving this limited effect. Indeed, the moment the science of law makes use of criteria other than technical or formal

ones

( which do not take account

of

the content of the enactments), it immediately lays itself open to the charge of overstepping the boundaries of its legitimate field of action. It has already been noted that at the time of the jus commune restrictive interpretation was applied to the enactments of the individual legal systems which were regarded as deviations from the true ratio juris. But these shortsighted restrictions were also applied to the regulations of the free communities, in spite of the fact that these regulations contained a new law that was not born in vain. Anchored as it was in new social realities, it often possessed the vital strength to change the existing law and to modernize it; it was in fact generally progressive and designed to substitute its own ratio for that of the old law**. There are lawyers who greatly prefer the legal doctrines of the middle ages to those of our own times, because the former recognised as law only general norms aiming at the welfare of the community as a whole; this, it is thought, would provide a safeguard against the arbitrary dictates of the legislator, and a return to these doctrines is therefore advocated’’. But a general law is not tantamount to a non-arbitrary law, nor is a special law necessarily arbitrary — as some of the scholars of the jus commune themselves observed **; moreover, there is nothing to prevent the legislator from presenting in the form of general norms such norms as are meant in fact to apply to special cases 26.

Cf.

27.

“Cf. Colorni,op.

Calasso,

loc.

28.

Cf. Nicolo

cit.

cit), p. 155 ff.

de’ Tedeschi,

apud

Colorni,

op. Cita Dp: ae

PRIVATE LAW AND LEGISLATION

27

only. To achieve the desired ends, it would therefore be necesSary today to use other criteria than that of generality, and these criteria would have to be embodied in a rigid constitution in order to limit the power of the ordinary legislator. The legal tradition of England also regards legislative enactments as derogations from the common law, and as such subject to restrictive interpretation and not to be given analogical application. By means of these principles of construction, the judges unhesitatingly frustrate the apparent intentions of the legislature, which, as they sometimes bluntly State, are based on ‘misconceptions’ *. But it can hardly be

claimed

that in this way

only ‘misconceived’

or arbitrary

laws are maltreated; these formal and technical devices tend to be beneficial in one case and disastrous in another; being

able to discriminate but little between laws in respect of their contents, they fall equally foul of good and of bad laws. As a result of these traditional tendencies of construction, the English legislator is driven to be unusually careful in the formulation

of his objectives,

so as not to have them

frust-

rated by the judges, and his language is accordingly verbose, complicated and casuistic. For, indeed, when the language of the legislator is clear and unequivocal, English judges never venture to depart from it. Even in the past, when it was generally agreed that the authority of the legislator was limited by the principles of divine law, the law of nature, or ‘reason’, and that laws conflicting with these higher principles ought to be regarded as null and void, no instance can 6 found of any English enactment which was in fact invalidated. by the judges on these grounds *. And when, in 1871, a court was faced with the enforcement of a law which offended against the principle of nemo judex in causa propria — one of the sins which invalidate laws according to the old theories — the judges’ reaction was explicit: “We sit here as servants of the Queen and the legislature... The proceedings here are judicial,

not

autocratic;

which

they

would

be

if we

could

make laws instead of administering them” *. Nor do our own courts deny the binding force of laws which — in their 29. 30. 31.

Cf. Allen, Law in the Making, 4th ed., 1946, p. 381. Cf. Allen, ibid., p. 372. Lee v. Bude (1871) L.R., 6 C.P. 576, 582.

28

G.

TEDESCHI

opinion — offend against the principles of natural justice, but recognise and apply them 5 In conclusion it may be said that the methods used by the = science of law to restrict the effects of legislation are, on the whole, merely palliative — inadequate, and ill-adapted to their purpose, if their purpose is to resist the tyranny of the legislator; and on the other hand, they are themselves

productive

of additional mischiefs. 8. In the history of law, legislation represents a further stage of development in comparison with ‘juristic law’ **, and it is regarded as a more perfect instrument. Even the historical school, with all its hostility to legislation (which did not spring merely from these transient causes elaborated by Savigny in his famous pamphlet against codification), admitted that in the course of history juristic law is followed by legislation — just as customary law is followed by juristic law. For the purpose of law-making the legislator — as against the science of law — has the advantage of being the appropriate organ, created with that very aim in view. To the science of law the system does not, on principle, assign anything but the ascertainment of the law, its construction and application; this is true, whether we speak of judges or of private lawyers who have been officially accorded the jus respondendi. When the science of law reforms the law it does so only by a deliberate or unwitting distortion of existing provisions; it reforms only by stealth and by concealing the true nature of its work. Our very use of the expression “judgemade law” really indicates that we recognize that the judge assumes an additional function in systems in which the legislator is inactive or non-existent. But the indirectness of judicial legislation limits its efficiency: it does not, for instance. enable the judges to “deal with anything but the actual cases before them”, to introduce legal provisions for the future 32.

See H. C. 1—2/50,

33.

Cf.

34.

Cf. Allen, op. cit., p. 264.

P.S.C. 120, at p. 129, etiam

Lect. XIII, p. 398.

Maine,

3 P.S.C. Early

3 at p. 9; see

History

8180 L.C.A.

of Institutions,

é

9/55,

London,

26

1893,

PRIVATE

LAW

AND

LEGISLATION

29

which clearly depart from existing ones, to develop novel institutions, or to impose duties the retrospective imposition of which would work an obvious injustice. Since the judgment as such is not meant to serve as a source for legal norms, it is necessary in each case to have recourse to the far from easy process of extracting from it its ratio decidendi. The statute, on the other hand, is by definition the appropriate instrument for legislation, that is for the imposi-

tion of general norms looking to the future. Enacted law takes account of the typical interests involved in the relations regulated by it, for it is designed to regulate those relations generally. But it is only natural that the ratio decidendi of a decision not based on law or customs should be strongly affected by the circumstances of the particular case in which the decision is given, and should therefore not be suitable for application in other cases. Enacted law is likely to be logical, to constitute a systematic and harmonious organisation of a whole set of relations. And that also because the legislator has the advantage of being free, free to enact and free to repeal or annul. The science of law, on the other hand, is certainly not free in this respect. It

is certainly not free in those systems in which it is — at least theoretically — bound by laws and customs, and thus obliged to suppress the reasons for its conclusions and to disguise its innovations,

which

become

intricate,

confused

and

fragmen-

tary. Nor is it free in those systems in which it is not bound by laws, for here it eventually becomes subject to its own decisions and is thus deprived of the power of repeal which every legislator must have. But even if we overlook this difficulty, judge-made law is essentially casuistic, prone to self-contradiction and conflicts of principle to a far greater extent than codified systems; and its development is haphazard and devoid of order and system even within individual branches or with regard to particular questions. Enacted law is popular law, it is accessible to the layman and readily understood by him. But a system that is based the on the science of law excludes the layman and helps expert to gain absolute control. Enacted law is certain. But the law made by individual jurists, or by judges in the course of adjudication, is not

30

G.

ascertainable in advance,

TEDESCHI

and in order

to check

arbitrariness

and not to disappoint expectations overmuch it becomes necessary to adopt the principle of stare decisis. While one defect is thus to some

extent removed,

others

arise

which

are

not

less serious and in view of which the principle of stare decisis is today increasingly criticized in the countries in which it obtains. This criticism is particularly directed against its application in the sphere of enacted law, a sphere which in these countries too constantly grows and also extends to matters of private law; for in this sphere the text of the enactments gives the law sufficient certainty and the drawbacks resulting from the doctrine of precedents cannot even be regarded as a “necessary evil”, as in the case where judgemade law is the sole source of law. 9. As a further proof that private law is essentially independent of the State Vassalli adduces the following argument: there are times when the State is powerless — as was lately the case in some countries of Europe during the war (and also, we may add, in Palestine towards the end of the British mandate)

and yet the result is usually not chaos in the sphere

of private law, for the moral order and the substance of the legal order continue to be respected and observed. This, says Vassalli, shows that basically private law is bound to no

particular positive system.

If this argument is meant to emphasize that law — and particularly private law — is not exhausted by the commands of the legislator, or by the norms of the State in general, no objections can be raised. The law of the State is as a rule sustained by public opinion and is often actively supported by it. In all societies there exist, beside that principal source of norms called the State, a great number of other law-making centres, and these too are variously equipped with means of pressure

and

sanction.

In most

cases,

indeed,

there

is more

or less complete agreement between the norms of the State and those of the other law-making centres; the injunction of the State therefore appears as a mere affirmation of, and accrual of dignity to, the law “which arises spontaneously and is independently observed”, viz. the law created by those inferior

‫ע‬/

PRIVATE

LAW

AND

LEGISLATION

31

centres. It follows that if the State should be powerless for some time, popular consciousness would uphold the laws — a result which would have been extremely unlikely if the efficacy of the laws rested solely on the coercive powers of the State. And even where there is no identity between the norms of the State and those other norms (e.g. unrecognized associations, transactions which the State deems void or even illegal), the latter are not by reason thereof necessarily devoid of binding force: the coercive forces of the community ensure some efficacy for them — even if it is only a limited efficacy in view of the opposition of “official laws” 55. But just one cannot agree with Eugen Ehrlich who confines the appellation “living law” to the “law of society” — as if the law of the State did not live just as much, and as a rule even more so, being more strictly enforced — so one cannot but dissent, if from the above considerations it were to be concluded that the sanction of the State adds but little to “spontaneous law”; or, what is still more extreme, that we could safely dispense altogether with the intervention of the legislator, of the State in general, or more generally still — so as to include all forms of supra-national legal orders which may perhaps come into being — with all official or authoritative intervention, and could entrust the law exclusively to spontaneous moral and social forces. Nor can we agree with the view that the legislator should refrain from legislating whenever his decrees are not likely to meet with the immediate and spontaneous approval of the public. The spontaneous observance of norms — or their observance: owing to coercive forces other than those of the State —

may

be said to be the rule with regard to most social relations. But this rule will not, generally speaking, obtain in what are called border-line situations; nor with people who, for some reason or other, are not sensitive to certain forms of sanctions. Indeed, the business-man who wishes to maintain his business and to prosper in it may find sufficient inducement to honesty and decency in his self-interest, but someone will always be found who 35.

will not conduct See

Tedeschi,

filos, del diritto, IX

himself thus of his own

‘“Volonta

(1929).

privata

autonoma’”’,

in

accord, Riv.

a man

internaz.

di

32

G.

TEDESCHI

who has nothing to lose or who hopes to escape the consequences, Again, family relations are as a rule regulated more by affection and sympathy than by legal coercion, but there are always cases where selfishness, caprice and pugnacity outweigh affections, and then it is only the sanction of the law which will stand between the right and its violation. For these reasons we agree that the idea that the law of the State should withhold its support of contracts so that they should only be made between people whose integrity can be relied upon, is nothing but a paradox — as Holland rightly called it **; even though there seems to be evidence that early systems of law were based on principles of this kind 97. For the same reasons we must also dissent from the view, shared by Tolstoy, that all law ought to be abolished in order that social intercourse might be based on Christian love alone‘, Similarly, the inclinations of some legal systems, e.g. the Jewish, to provide but partial sanctions for the enforcement of the duty to pay alimony

or maintenance *’, and

to rely rather

on

the

spon-

taneous observance of the precepts of religion and morality, seem very questionable to us; nor can we regard the traditional common law immunity in torts of the spouses as particularly commendable. It is useless to defend such negative attitudes of the law by urging that strife and disputes are thus averted. If by disputes we mean lawsuits, they are indeed averted; but surely the way to avert disputes is not to shut the doors of the courts before would-be litigants. Will not the aggrieved parties, as a result of this denial of justice, seek redress otherwise, by non-legal or illegal means? In most cases the legal sanction may indeed be superfluous, but it can do no harm; in those other cases, however, its absence imperils the right and leaves the wrong unredressed.

The validity of “spontaneous” law stands in direct relation

to the extent of the acceptance it finds; not in the consciousness of this group or that by which it is produced or promoted, but in the consciousness of the society as a whole. It is never 36. 37.

Cf. Holland, Jurisprudence, 12th Cf. cit. apud Holland, loc. cit.

38.

Cf.

L.

Tolstoi,

Ueber

das

Recht

ed., 1917, p. 258. —

Briefwechsel

mit

einem

risten, Deutsch v. A. Skawan, hrsg. v. E. H. Schnitt, 1910, 39. See Gulak, Yesode Ha-mishpat Ha-ivri (Hebrew), Dwir, 1922, XII, pp. 68—69.

Ju-

Berlin,

PRIVATE

perfect,

however,

until

LAW

AND

LEGISLATION

it is authoritatively

33

recognized

and

approved. The wise legislator is he who pursues a liberal policy and does not withhold his recognition and support of any healthy spontaneous legal creation or social aspiration. On the other hand, it must be admitted that enacted law obtains full positive validity only if it is substantially based on the consciousness of the community. Even to democratically enacted laws it can happen that for some reason or other they do not appeal to the people; this is especially the case of some of those fiscal and administrative laws which encroach upon private law. But it does not follow that the legislator is wrong and the popular attitude is necessarily the healthier one. There are times when it behooves the legislator not to follow the dictates of public opinion, but rather to take the lead and to guide it —

as Saleilles used tosay;

sometimes,

in the interest

of the requirements of national life and in order to ensure public welfare, he even has to impose constraints which go against the inclinations of the people. It is clear that there are bounds which must not be overstepped; but by and large the spirit of the people, if properly understood, can be prevailed upon and moved

for good as for evil“. In this respect

the democratic legislator has the advantage both of a support and of a restraint which should save him from serious blunders. 10.

Vassalli combines his aspiration for a private law freed from the bonds of the State with the hope for an internationally — unified private law. He proceeds from the assertion that it was by means of national codes that the community of spirit, ideas, and custom, which formerly prevailed in continental Europe and which found its expression in the jus commune, was destroyed, and that today these same national codes act as barriers between peoples sharing a common culture “. By restoring the law into the charge of the science of law it would in his opinion be possible to bring it back to its logical and ethical foundations — and thus to its uni40.

Cf. J. Stone, Province

41.

Cf.

etiam

Pacchioni,

and Function op. cit., p. 33 ff.

of Law, London,

1946, p. 444.

G.

34

TEDESCHI

ximation and versality — and this would promote the appro . utions instit al perhaps even the unification of nation opinions of Here we arrive at a marked divergence of the ete agreecompl in are Savigny and Vassalli — though they as the where ation: ment in their lack of enthusiasm for legisl ary arbitr former holds up the “Volksgeist” as against the with an will of the legislator, the latter would supplant it or at — nature in sal univer element of reason and morality ng tendi and — e least common to nations sharing one cultur ation to facilitate international understanding or even a unific of nations. With

regard

to the

historical

school,

however,

one

may

remark that the Volksgeist would have revealed itself and. found expression to a much greater extent in a national codification than it could grow and blossom during the prevalence in Germany of that same Roman law of which Savigny and his fellow-adherents were such enthusiastic followers and exponents; indeed, the very process of codification might have brought this Volksgeist into being and given expression to it. In the end, the German legislature was, in fact, obliged to effect the codification without waiting for the scientific organisation of that national German law. In opposing codification Savigny was thus moved more by conservatism than by nationalism.

As to Vassalli, it seems that he cannot be regarded as a

very determined partisan of unification, for he prefers to speak of convergence rather than unification, and he does not even extend that to the whole of private law. However, quite apart from the question of the extent to which unification is desirable, the problem arises whether his is the way to achieve it. If national

codes were

the only barriers,

and

these

would

vanish with the return of the law into the fold of legal science, then indeed English law should be more ready for unification and nearer to it than any other system. For it is the English system which until quite recently hardly felt the hand of the legislator, and which bases itself on ‘reason’, in accordance with which it was developed over the generations by an enormous number of learned and distinguished men and after

PRIVATE

LAW

AND

LEGISLATION

35

much experience, as Coke said“. Yet the contrary is true. English law remains the most ‘insular’ of western systems of

law, the system most intimately bound by the historical and accidental circumstances of its growth, of the growth of its various institutions, and, indeed, of the emergence of the individual precedent within each institution. In spite of its marked merits, it seems to be less logical than other systems (as English lawyers themselves frequently admit), in the sense that it cannot be systematically arranged, is incapable of synthetic formulation, and its provisions are dispersed over a profusion of precedents often mutually contradictory **. It is also less capable of being absorbed by foreign peoples, or of serving as a basis for an international unification (just as one would find it difficult to use the English system of weights and measures, or its coinage, as a basis for interindeed, the English themselves

unification;

national

introduced

the decimal system in Palestine, and not their own system). The above is confirmed by the fact that some of the amendments recently made by the English legislator, as well as other amendments recommended by the Law Revision Committee, tend to bring English private law nearer to the systems“,

continental

and

a rule,

as

that,

not

by way

of

conscious imitation, but owing to the requirements of the subject-matter itself. On the other hand, it cannot be said 42. “.., if all the reason that is dispersed into so many several heads, were united into one, yet he could not make such a law as the by many

is; because

of England

law

it hath

of ages

successions

beene

fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, for the government of rule may be justly verified of it, Neminem legibus: no man out of his own private reason

this realme, as the old oportet esse sapientiorem

ought to be wiser than the law, which is the perfection of reason” (Co. Litt. sec. 138). 43. English judges have admitted that in order to formulate a legal as principle it is often necessary “to reconcile the irreconcilable”, Goddard, L.C.J., said in Hibbert v. McKiernan [1948] 1 All E.R. 860, at p. 861;

lation

characteristics

these

derived so

manner,

ten times

from

that

the

English Civil

make

it extremely

precedents

Wrongs

difficult

in any

Ordinance

of Palestine,

as large as its counterpart in the Swiss

times as large as that in the Code of English law on the subject. As

to draft

but a highly

though

Civil Code

legis-

casuistic it is

and fifty

Napoléon, does not contain the whole to the want of logic in English law,

to ‘rationalize’ it; the judges have concluded that it is not their function 156, 175. see

e.g. Lord

44,

Macmillan

Cf. Friedmann,

in Read

v. Lyons

op. cit., p. 349.

[1947]

A.C.

~

G. TEDESCHI

36

that the converse is also true, that there is a similar tendency on the part of continental private law to approach English law — even though much could be learned from it, particularly with regard to sound and practical concrete solutions. On comparing English law to the laws arranged in codes, it immediately becomes apparent that it is legislation — and particularly codification — which rationalizes the law, because of its capacity to innovate, to make a tabula rasa of the past,

or at least to perpetuate only that part of the old law which passes muster

examination,

in an all-round

one

in which

the

law is looked upon as a synthetic whole. As to the codes of the different

countries,

it can

certainly

not be said that they take no notice of each other; on the contrary, the debt owed by each code to those which preceeded it is unmistakable,

and when

a code is revised

other modern

codes are always taken into account. It is true that it was the science of law which brought about the reception of Roman law in Germany and other European

regarded

countries.

as an

ideal

A

mere

reception

solution.

regard to countries which

In our

cannot,

times,

are equal in cultural

however,

be

at least with development,

it is not the geographical expansion, the mechanical reception, of some particular legal system which is desirable, but the unification of different systems by a merger between them. On the other hand, the science of law certainly has no monopoly of receptions — these are usually effected by legislation nowadays — nor even of unifications in general. Even as regards the relative unity of the jus commune, which is often relied upon by the opponents of codification, this unity was not brought about by the science of law, but at the most was preserved by it. But, instead of uniting, the science of law quite frequently divides: out of a single system it creates several distinct and different ones, and from identical laws in different countries it produces laws the practical application of which is far from identical. When a legal system places its centre of gravity on the science of law and the doctrine of stare decisis prevails, all unity with other systems becomes ephemeral, unless a common Supreme Court is established.

PRIVATE

LAW

AND

LEGISLATION

37

The work of comparing the laws of different countries lies, of course, within the exclusive province of legal science. But comparison as such is not yet unification, nor even convergence. Certainly, unification too has to be prepared by jurists (just as all legislation requires their co-operation), but the question is whether they are capable of effecting it by themselves, without the sanction of a competent authority. Moreover, what reason is there to believe that the science of law would incline naturally towards unification unless its endeavours turn in this direction, or are turned towards it, as a

first step towards international or supra-national legislation? Just as internal codification sometimes tends to promote the formation of a common legal consciousness, so also would a definite and authoritatively declared policy of unification encourage scientific efforts to bring about an approximation of different systems; this is what has happened in those very limited fields in which international unification of the laws of many countries has actually been achieved, and also where regional unifications have been made. If a draft-code of private law were to be prepared and constantly revised and kept up to date by the jurists of a number

of countries,

there can

be little doubt

that it wouid

prove to be of great academic and practical value. Only some definite work of this kind is likely to draw the different legal systems nearer to each other to any marked extent, particularly the continental systems and those of the common law; without it no rapprochement of any importance is to 6 expected, even if the jurists of different systems were to get acquainted with one another. A code of this kind would deserve to be actually adopted by those countries which for some historical reason have no national law of their own and are not capable of creating one, and would therefore in any case have to adopt some kind of foreign law. In the course of time, it might also be adopted by countries that do have a continuous and time-honoured legal tradition.

The idea that the sanction of authority could be dispensed with in the creation of law and its unification was recently also expressed in this way: instead of trying to bring about a unification of laws, we should endeavour to achieve a uni-

38

G. TEDESCHI

fication of contracts, as this would be allegedly easier “. But how any material unification can be effected in this way as long as contracts remain subject to different legal rules, starting

with

rules of construction

and

extending

to cogent

norms, is a riddle; particularly today, when, together with the other branches of private law, contracts are increasingly regulated and interfered with by legislation. Unification is not likely to be effected in defiance of national legislation, nor without the agreement of national legislators, but only by their will — whether they adopt rules internationally agreed upon, or surrender part of their sovereignty to supra-national bodies. But it is hard to believe that any comprehensive scheme will succeed unless some political stability and some measure of unanimity in political thought, such as would facilitate the determination of common and durable values, is first achieved by all the participating countries. LT As to the conclusions to be drawn from the above ‘apologia for legislation’, they are simple and in no way revolutionary. Today, when the activity of the legislator is continuous and is designed to be both democratic and based on scientific methods, enacted law should form the centre of gravity of the system,

in the form

of national

law and, in some

matters

at

least, of international or supra-national laws. For, as against the many disadvantages of judge-made law, of the law created by jurists, of customary law, and of that ‘spontaneous’ law of society which lacks all official sanction, enacted law tends to provide rules which are certain, logical, clear, effective, popular and progressive. To the science of law there will always remain the function of filling the gaps of the system, that is to say, of supplementing enacted law by creative work of its own; not, however, in an arbitrary manner, but in accordance with the provisions of the system and in its spirit. The legislator would do well if, rather than attempting to deny, by means of a sterile fiction, 45.

Cf.

Ascarelli,

in

Actes

du

Congrés

international

de

droit

tenu à Rome en juillet 1950, Institut internat. pour Unification privé, Rome, 1951, p. 473.

privé

du droit

PRIVATE

LAW

AND

LEGISLATION

39

the existence of gaps in the law, he were to sanction the creative function of the judges and at the same time to regulate it. He would also act wisely were he to refrain from formulating his enactments in an over-detailed and casuistic manner, such as is designed to tie the hands of the judges. Lawyers and laymen alike should endeavour to make legislation as scientific, as logical, and as democratic as possible by actively co-operating in the preparation of laws, by critically examining the work of the legislator, and by resisting his arbitrariness. In order to check the arbitrary will of the legislator — and also for the protection of the rights of the individual — recourse might perhaps be had to some expedients such as the embodiment of certain principles in a rigid constitution, or the institution of a referendum directed toward the repeal of a statute, and similar devices. Perfection, indeed, is not to be found anywhere, and enacted law too will not always be free from evil, oppression and abuse; every people gets the legislator it deserves and the judges it deserves. In our times, however, the imperfections of legislation are not to be remedied by usurpations on the part of the science of law, for it too is not free from shortcomings — both technical and political; and, where the system in question

is a

democratic

one,

an

encroachment

upon

another’s province, even if it is tolerated, cannot be justified. In view of the above we would join Goethe in saying that disorder is more pernicious than injustice. Legibus judicandum est “.

12. If, as has been said, it is incumbent on the courts to acknowledge the supremacy of the legislator and to accept it unhesitatingly and without reserve, then indeed the attitude of the courts in Israel does not seem satisfactory. The judges do not always in fact faithfully comply with the will of the legislator, and that in several respects, and for a number of reasons. In the first place, the doctrine

of stare decisis has

been

adopted here and has taken roots. There are even some who 46.

Codex, VII, 45.

G. TEDESCHI

40

called for blind deference to precedent ‘, notwithstanding the lack, before the Courts Act, 1957, of any legal foundation for

it in the systems of Palestine and Israel and despite the fact that in an enacted system, such as ours, its principal raison d’être is missing, viz., the endeavour to attain certainty in the law where

there

is no written

law and the law is in reality

created by the courts. It is true that the application of this doctrine was not always very consistent and meticulous; but still, as

a result

of the

doctrine

less regard

is paid to the

enactments as such because they are now covered by precedents. The enactment becomes a background to the precedents, and all discrepancy between them tends to take root and to be perpetuated. Secondly, section 46 of the Palestine Order in Council, 1922472, undermines the position of local enactments in general, in that its effect is to prevent the extension of their application by analogy, and makes it necessary in each particular case to raise the question whether local law or English law is applicable. But that is not all. The misuse of section 46, by which English law is introduced even in cases where in accordance with that section local law is applicable, must be added to the effects of the section as such. Under section 46 the judge should first determine if the case before him is regulated by local law and he should turn to English law only if his findings on this point are negative. But this is not what is being done. The judge usually starts off with a dissertation on English law, even when it is quite clear to him that the case before him is governed by local law, and though in fact he applies local law in the end; one would think there is some impropriety in omitting deliberations which are plainly irrevelant “*. Moreover, it happens quite frequently that the question whether there are provisions of local law applicable to the case is not even considered, and these provisions are thus illegitimately discarded by mere silence. This is done 47.

See

Ha-praklit

(Hebrew),

September

47a. Palestine Order in Council, tine, III, 1934, p. 2569, 2580. 48,

eSee,se.g.,

C.C,

1511/52

1922.

09 P.D.C.

1953,

Cf.

p.

329.

Drayton,

Laws

of Pales-

311, at p. 316):

where

the judge

“says that “we turn to English law by force of habit”, but after a lengthy discussion of the English law on the subject under consideration concludes

that

it is regulated

by local

provisions.

PRIVATE

LAW

AND

LEGISLATION

41

with regard to provisions of Ottoman laws as well as to provisions of laws more recently enacted. As to Ottoman laws, Palestinian and Israeli judges seem often to regard them as of doubtful validit y, quite apart from section 46, that is, even if no recourse is had to English law im accordance with that section: for the attitude towards them is one of disparagement and contempt **. There are decisions in which it is emphasized — as a matter worthy of Special notice — that “the courts of Israel even today pay attention” to certain sections of the 1106116 5 And it is a very frequent occurrence for both Palestinian and Israeli judges to read these laws through “English spectacles” * or 49. A decision of Fitzgerald C.J. will serve as an example: in C.A. 70/44 (1944 A.L.R. 426) he says that early and obsolete Da have to be construed in the light of the scientific knowledge and cultural progress of the times in which it is proposed to apply them, and in fact he ignores these laws in cases in which they do not suit modern conditions. On the other hand he fails to mention a principle of the Mejelle (art. 39 — “It is an accepted fact that the terms of law vary with the change in times”) that would have supported his reasoning, but which certainl y differs from English principles of construction, — Another example,

one of many, is C.D.C.T.A. 371/48 (4 P.D.C. 268) where the ‘option after inspection’ is repudiated on the basis of an ‘implied intention’ of the parties; but since this is not done on the basis of the real intention of the parties, the repudiation is clearly contrary to law. Characteristic of the attitude prevailing among Israeli jurists are the words of Judge

Sussman

the

in his book Dinei Shetaroth

subject

of capacity:

after

(Hebrew), Tel Aviv, 1954, p. 27, on

quoting

the

Mejelle,

according

to which

a person aged 15 years has full contractual capacity, he adds that “it is very

unlikely

that

the

courts

will uphold

agreements

by persons

of that

age”, — See also, e.g. Manning J. in C.A. 194/37 cited in C.D.C.T.A. 597/53 (10 P.D.C. 240, at p. 244—5) and also Judge B. Cohen, ibid. 50. Cee C.A. 59/52 (16 2.8.0. 75, at p. 80). 51. See e.g. our remarks in Studies in Israel Lew. (Hebrew), Jerusalem, 1952, p. 217, on art. 109, 110, of the Ottoman Code of Civil Procedure. These sections require a concrete and subjective assessment of damages, but in practice they are constantly interpreted in the light of the opposite English rules on the subject. (For a recent decision see CD.C.T.A. 611/51, 9 P.D.C. 154, where this reference to English law is justified on the ground that “English and Ottoman principles are very similar”). Another interesting illustration: in C.D.C.T.A. 296/56, 19 0 95, where the judge sought support for his opinion (that there is no tortious liability for negligence without physical injury), he did not rely on certain expressions in sev. 50(2) of the Civil Wrongs Ordinance — as he probably might have done. Instead, he preferred to express the opinion that in view of the English rule regarding negligence, ‘one must restrict the provisions of sec. 50 of the Civil Wrongs Ordinance, 1944,

which sec.

— 2 —

when

read

confer

the

together

with

right

recover

to

the broad damages

definition for

every

of ‘damage’

in

encroachment

upon man’s comfort and well-being” (ibid., at p. 100) to cases of physical injury. What warrant is there for the judge’s attempt to restrict the application of the enactment even beyond his own reading of it?

42

G.

TEDESCHI

to have recourse to English law without even raising the question whether local law lacks an appropriate provision; and that, even where there are in fact provisions of local law and the question should therefore at least have been raised and considered "5 and even where the matter in issue belongs to a branch of the law fully regulated by local law. At times matters go so far that the judges ignore the very provisions of Ottoman law which would have supported their decisions, and instead claim to apply English law where that is in fact contrary to their judgment > Nor are Palestinian enactments which are modelled on English law satisfactorily applied. For back of them is the English law from

which

they were

taken,

and Israeli judges

tend to take English precedents into account even where they 52. See 6.0. CID.CT.A. 141/50, 3 P.D.C. 118, which is discussed in Studies in Israel Law, cit., p. 81. Here the judges are content with stating that there

are

no

provisions

of

local

law,

though

certain

visions should certainly have been considered, even if only to show they do not provide a solution. See also C.D.C.T.A, 149/48, 6 P.D.C, where a contract for the benefit of third parties was in question, it was held that the matter is not regulated by local law without considering the effect of the words of art. 64 of the O.C.C.P.:

pro-

that 232, and even “the

terms of all contracts . . . are valid as regards the contracting parties”. — Also the question whether a purchaser of immovab le property is entitled to damages on the basis of profit of which he has been deprived where the vendor’s failure to complete is not due to bad faith was mainly argued in the light of English law, and not with reference to

art. 109 of the O.C.C.P.; in C.A. 92/50, 12 P.S.C. 56, the problem of incomplete contracts was considered without mentioning paragrap h (3) of art. 64 of the O.C.C.P. which expressly regulates the matter. The same

thing happened

in C.A.

D.C.T.A.

tracts against public policy were paragraph

(1) of the

same

215/53,

discussed

article.

8 P.D.C.

412, where

con-

at length without mentioning

53. See, 6.0 C.A. 130/50, 9 P.S.C. 163. 54. See, 6. 0. C.A. 61/43, 1943, ALR. 145, which is discussed in Studies in Israel Law, cit. p. 203. — Another example is C.A. D.CT.A. 58/51, 5 P.D.C. 238: in order to substantiate the View that art. 1 of the Iradé on Letting of Immovable Property 1881 (as amended in 1914) has lost its validity by desuetudo,

of the Mejelle but

instead

Lockwood desuetudo

the

judge

does

not

rely on

the

cites

Tindal,

provisions

(e. g. arts. 36 & 45) which might possibly be of assistance,

claims

v. Wood

to

rely

(1844)

on

English

6 Q.B. 50

law

at p.

and

64.

does not affect the validity of statutes

But

in

C.J.

English

in

law

(see R. vw.

2 K.B. 215, 216, 242). What Tindal, C.J. said only applies L.C.C. [1931] to particular customs which derogate from the common law and constitu te the common law of a particular locality (“A custom which has existed from time

immemorial without interruption within a certain place, and which is certain and reasonable in itself, obtains the force of law, and is, in effect, the common law within that place to which it extends, though

contrary

to the general law of the realm’’)

PRIVATE

LAW

AND

LEGISLATION

43

are not consistent with the text of the law adopted by the Palestinian legislator , who endeavoured to choose among the different trends and opinions in English law and to reject Some of them in order to unify the system. Even where there is no question of gaps in a local Ordinance, 6.0. the Civil Wrongs Ordinance 1944, it is not very often that consideration is in the first place given to its provisions, and that English law is only referred to for purposes of construction; recourse is had directly to English case-law, and the solution to the problem is taken from it. The local rule usually serves merely as an official stamp put on a solution really reached in another way‘. 595.

See,

P.D.C.

86,

sidering the mention

6.0. in

CA.

which

question

of them

216/54,

20

‘exemplary

in view

whether,

in the

PSC.

Wrongs

Civil

179; C.D.C.T.A.

damages’

of

are

awarded

the

fact

that

11 con-

there is no

damages

such

Ordinance,

2238/54, without

can

at

all be awarded in this country. 56. See, 6.0. C.A. 22/49, 3 P.S.C. 237, which is inspired by just that line of English cases which does not find expression in sec. 60 of the C.W.Q. (see Silberé, J. in Cr.A. 47/56, 25 P.S.C. 296). Similarly, it may be assumed that with regard to dangerous things, and to the duty of care in general, English distinctions such as those in Otto v. Bolton [1936] 2 K.B. 46, and in Farr v. Butters [1932] 2 K.B. 606, would be taken into account, even though the text of the C.W.O. ignores them. Also, there would be no reason for not adopting the English doctrine of ‘common employment’ — if it were still in force in England — in spite

of the

P.D.C. 223, judge cites consistency

regard country

to of

provisions

of the

C.W.O.

Also,

see

C.A,

D.C.Ha.

89/55,

13

where the rule ‘res ipsa loquitur’ is discussed and the an English case (at p. 227), completely ignoring its inwith

the

tendencies all

rule

adopted

such

as

independence

in

these —

even

sec.

54

which

of

the

deprive

where

C.W.O.

the

law

independence

Having

of seems

this to

be obligatory — it is difficult to see the advantage of having Palestinian enactments after the English model, instead of adopting English law pure and simple. Also characteristic of the attitude discussed are the

things

said

in 8 Ha-praklit

(1952)

p. 279,

in the

course

of a book

review. It is there submitted that ‘capacity’ in the Bills of Exchange Ordinance should be construed as meaning capacity in English law, for sec, 22 (1) says that capacity to incur liability as a party to a bill is co-extensive

with

capacity

to contract,

and

in his context

the legislator

could not have referred to anything but English law. But the Ordinance was enacted in Palestine as a Palestinian Ordinance and should therefore be construed as part of the law of Palestine. E.g., in dealing with the rule ‘res ipsa loquitur’, in C.A. 304/53, 57. 17 P.S.C. 117, the judge does not proceed from sec. 54 of the C.W.O, but from English case law, and following a case which was decided

during ‘losing sonant

the hearing of the appeal he holds that the rule is gradually its importance’ without considering whether this view is conwith the existence of the aforementioned section. He mentions

the section only at the end question raised by counsel.

of his discussion,

and

that

because

of some

44

G. TEDESCHI

Furthermore, in their attitude towards Palestine and Israel enactments, the courts are strongly influenced by the principles of construction obtaining in England, including those that are founded on the traditional status of enacted law in England as particular or special law in contrast to the common law. But this is not the place to be accorded to enactments in Palestine and Israel, nor are these the appropriate principles of construction; for in England the common law is the basis and framework of the system, whereas here its function is merely supplementary. It cannot be said that during the British Mandate these tendencies were more markedly characteristic of British than of Palestinian judges, whether Jewish or Arab. Nor have matters changed after the establishment of the State of Israel: as against the continuing exaggerated use of section 46 as a conduit pipe for the importation of English law, the proviso

of section

11 of the

Law and

Administration

Ordi-

nance, 1948, has received an interpretation restricting its operation to “technical changes without which it is not possible to apply the law after the establishment of the State” 5, The deprecatory attitude towards Ottoman laws, and the tendency to restrict their operation, could perhaps be defended on the ground that these laws are on the whole antiquated. But it cannot be said that this attitude always springs from the search for a better law, one that is more in keeping with our times. Thus, for instance, it will hardly be claimed that such a search was the reason for adoption — as against the principles of our system — of the doctrine of consideration at a time when the English are themselves trying to get rid of it. So also with regard to impossibility of performance in contract: whereas English law tends increasingly to approach the Romanistic rule prevailing in the Ottoman Code of Civil Procedure “impossibilium nulla obligatio”, Palestinian and 58.

See H.C. 5/48, 1 P.S.C. 14. —

“Sec,

11:

May,

1948)

The

The text in question is as follows:

law which existed in Palestine

shall

remain

in force,

insofar

on the 5th Iyar, 5708

as

there

is nothing

(14th

therein

repugnant to this Ordinance or to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the State and

its authorities”

(Laws

of the State of Israel, I, p. 9).

PRIVATE LAW AND LEGISLATION

45

Israeli judges quite frequently ignore it and prefer to follow the traditional principles of English law, or arrive at it only after resorting to the fictions that were employed by English law in the course of its development. As regards the distinction between liquidated damages and penalties, a distinction made in English law and clearly inconsistent with the provisions of the Ottoman Code of Civil Procedure, it must be admitted that the rule in sec. 111 of the O.C.C.P. according to which the judge is in no case authorized to reduce the sum of damages agreed upon between the parties, is not ideal. But the solution that all agreed penalties are void, which obtains in equity for historical reasons, is not perfect either — neither in logic, nor as a practical matter‘. And we have seen that there are cases where the very solution sought for is more nearly given by Ottoman law — which is ignored — than by English law which is allegedly applied. As we have said above (§7), in their tendency to restrict the effects of legislation the judges cannot be very discriminating: the criteria used by them will generally be of a formal and technical nature, and will therefore

affect good laws as well as bad, arbitrary,

and antiquated ones. If in deviating from Ottoman or Mandate laws the judges are not principally actuated by a desire for a better law, they are still less animated by an aspiration for the creation of laws of our own, new laws, independent and original ones: we have already noted that no advantage was taken even of the opening provided by sec. 11 of the Law and Administration Ordinance. The age of great judicial creations is past. Today the function of law-making is first and foremost that of the legislator — in Israe] as everywhere else. The responsibility for the legislative policy rests therefore on the legislator, and the courts must in no way distort it; it is their duty to apply the law ad litteram et spiritum. It follows that the judges 59.

But

see

Judge

B.

Cohen

in

C.D.C.T.A,

597/53,

10 P:D.C.

240,

at p. 245. Our

view

can

find

support

in

the

Protection

of

Wages

Law,

1958

(Hok Haganat Hasakhar, 5718-1958, Sefer Hahwkkim 5718, p. 86, see especially s. 17). This law provides for damages, which are in fact a sort

of penalty,

in case

of delayed

payment

of wages.

46

G.

TEDESCHI

cannot claim for themselvesa key-position in the legal system, Similar to the position traditionally enjoyed by English judges; for the special place of the judges in the English system is due to the historical fact that at some time they were the makers of law, even though the English judges never

reached the point of repudiating clear and express enactments, however out-of-date and unjust these might be. The high-handed attitude towards legislation prevailing in the courts of Israel, even if only in respect of foreign and antiquated laws, tends to instil in lawyer and layman alike an irreverence to laws in general; and even if new and national laws were now enacted it is unlikely that they would be regarded altogether differently. As has been said recently, if you were to tell a lawyer that “it is the business of the Keneset to make laws, and that of the courts to interpret them”, he would wink at you and reply: “you can tell that to the layman”®,. We have stated our opinion about the various reasons for rejecting in our times and in democratic systems this tendency of the judiciary to encroach on the province of the legislator: it certainly does not become ‘the well-ordered State to which we aspire.*

60.

See

8 Ha-praklit

% Part of this paper published

in

(Instituto

italiano

Italian

(1952)

p.206.

(not including the part on Israel)

in

Atti

del

primo

di Studi Legislativi,

Congresso

Rome,

di

was

previously

diritto

comparato

1953), p. 657 ff.

RENEWAL

OF ACTIONS

By S. GINOSSAR SUMMARY INTRODUCTION. 1. Reception of the doctrine of res judicata in Israeli law. 2, Estoppel — collateral or direct. 8. Position of a successful plaintiff: merger of the cause of action, 4. Position of the unsuccessful plaintiff. 5. Parallel approaches, ORIGIN AND DEVELOPMENT OF THE STRIKING OUT OF PROCEEDINGS IN PALESTINE AND ISRAEL. 6. Classes of failure of a proceeding in English law. 7.

Emergence

8.

Striking out: (a) in Ottoman legislation; (b) in early Mandatory legislation;

9.

of

‘striking

10.

(c)

in the

Civil

11.

(d)

in

Magistrates’

12.

Precedents

13.

(e)

the

out’.

Procedure

Rules,

Courts

on the construction

in Israeli

1938;

Procedure

Rules,

legislation.

14. Striking out as distinguished from dismissal. 15. [Parallel with criminal procedure. THE DISTINCTION BETWEEN STRIKING OUT DISMISSAL DISCUSSED. 16. Looseness of terminology. 17. Determination of a case ‘on the merits’.

LV

1940;

of ‘striking out’,

18.

Discretion of court merits or otherwise.

19.

Right

20. 21. 22.

Abolition of nonsuit in England. Restrictions to nonsuit in the U.S.A. The right of discontinuance in Israel,

of a plaintiff

23.

Penalty-dismissals

24. 25.

Literal Object

26.

Default

27.

Dismissal

to

declare

to be

under

its

judgment

AND

to

be

‘nonsuited’.

the

C.P.R.

construction. of penalty-dismissals. as

affecting for

want

28. Effect of demurrer: CONCLUSION. for

a

the

merits

of a case.

of prosecution.

striking

discriminating

out or dismissal?

29.

(Need

30. 31.

Appreciation of the Anglo-Saxon test. \jAdvantages of the distinction between dismissal striking out.

approach.

32.

Summing-up.

and

on

the

48

S. GINOSSAR INTRODUCTION.

1.

Reception of the doctrine of res judicata in Israel law.

During the period of the Mandate the English doctrine of res judicata had on every occasion been applied in Palestine as a matter of course and had found its expression in an uninterrupted series of precedents.‘

When

the State of Israel was

established, its first legislative act was to proclaim the principle of continuity of the law’ and no exception was made in respect of res judicata. On the contrary, as soon as the point came up for decision in the Supreme Court of Israel, the conclusion was reached that the English doctrine of res judicata had become part and parcel of the law of the land. ° It might have been anticipated that in this field Israeli law — and in particular Israeli case-law — was destined to follow the lead of the great Anglo-Saxon countries where English law is shaped or which participate in its development. Closer inquiry, however, reveals certain original features proper to Israel; features which, fortunately, are able to contribute indirectly to the solution of some of the most acute problems with which the English or American lawyer equally is confronted. 2.

Estoppel —

collateral or direct.

The problems we have in mind lie at the very core of the doctrine. To its periphery radiate, as it were, the waves of res judicata, that is to say, its external influence, insofar as it affects other proceedings instituted for some different object. 1. See our notes in Annotated 2. Sec. 11 of the Law and 5708-1948) reads: à

me vol.

Laws of Palestine, vol. V, pp. 115-129, Administration Ordinance (no, 1 of

“The law which existed in Palestine on the 5th Iyar, 5708 (14th May, 1948) shall remain in force, insofar as there is nothing therein repugnant to this Ordinance or to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the State and its authorities.”

of the State of Israel, Authorised

I, p. 9),

Translation

from

3. C.A. 155-159/50 (5 P.D. 540, at p. 545; 4 P.S.C. C.A. 126/51 (6 P.D. 313: 6 P.S.C. 429), at § 5.

the Hebrew,

240, at p. 245);

RENEWAL

OF ACTIONS

49

The effect of such ‘collateral estoppel’* is strictly limited and suffers ever increasing exceptions and reservations. This is not surprising, since the lawyer’s heart is torn between two conflicting sentiments: on the one hand, a legitimate desire to avoid superfluous litigation on an issue already adjudicated upon by judicial authority and to take full advantage of such decision, —

on the other hand, the no less legitimate

fear that the preclusion of a new trial may withhold from the court full cognizance of the true facts of the case. Such fear is adequately expressed in the adage ‘“Estoppels are odious”. If, however, the second proceeding is nothing but a repetition of the first, the apprehension and the odium it inspires are no longer justified or, at least, they are overwhelmed

by the far greater peril of duplicity of litigation. The rival

maxim “Nemo bis vexari debet pro eadem cause” then fully comes into play and prevails over every other consideration. For no organised society can tolerate that the process of the law be employed over and over again for the same purpose, every unfavourable result being ignored until judgment be finally recovered. The need for finality in litigation is so fundamental that it even exceeds the demand for truth and justice,

3.

or rather

it forms

one

Position of a successful of action.

of the basic tenets

plaintiff:

merger

thereof.

of the cause

The dangers of repetitious litigation are easily checked when the action succeeds. The cause of action is then said to merge into the judgment, a title of a higher nature, transit in rem

judicatam; and, as a result, the plaintiff can longer maintain another action on the same 080180." But

no

while the problem is simple, it is unlikely to arise, for is nothing to induce such a plaintiff to launch another Having obtained all the remedies prayed for, he can no ground of further complaint, and any attempt to 4, 1942), 5.

ment,

Restatement

of the Law

§ 45, comment c. of Laws Halsbury,

of Judgments

England,

5% 45-47, in particular,

3rd

ed.,

§ 47, comment

Law

(American vol,

a.

15,

$

363.

there suit. have bring

Institute, Restate-

5. GINOSSAR

50

If, on claims for additional relief will as a rule be foiled. * his of whole the the other hand, he has not been awarded e balanc the claim as framed, the action will have failed for and belong pro tanto to the category of unsuccessful proour ceedings, which forms the actual subject-matter of inquiry. 4.

Position

of the unsuccessful

plaintiff.

The unsuccessful plaintiff, on the contrary, will be tempted to look for a remedy. The first step capable of retaining his attention will generally be to lodge an appeal or, occasionally, some other direct attack upon the judgment. This, however, may prove of little assistance on more than one ground. The disappointed litigant may then consider the possibility of renewing his action. Being fully aware of the obstacle created by the unfavourable judgment on record, he will endeavour to introduce into his second suit some new element, so as to distinguish it from the former one, and thus to avoid the anticipated plea of res judicata or, at least, to relegate such plea into the far less stringent zone of collateral estoppel. The law reports bear witness to the boundles ingenuity employed to that end, and it would be worth while to enumerate, classify and analyse the methods so contrived, whether their object be the cause of 6. Steward v. Todd (1946) 9 Q.B. 767 Ex. Ch.; Hill v. Co-operative Wholesale Soc., Ltd. [1940] 2 K.B. 435 C.A.; [1940] 3 All E.R. 233. Cf. Huffer v. Allen (1866) L.R. 2 Exch. 15. See Restatement, $ 47, comment b. Under C.P.R., r.52, and the corresponding M.C.P.R., rr. 38-40, every action must include the whole claim which the plaintiff is entitled to make in respect of the cause of action and, if he is entitled to more than one relief in respect of the same cause of action, he should sue

for

all such

reliefs,

failing

which

he is debarred

from

his

right

to

sue in respect of any portion of the claim or any relief omitted. But there is no necessity to join in the same action all the causes of action

available

to the

plaintiff

English

Rules

(Brunsden

v.

Humphrey

(1884)

14

Q.B.

141, quoted in C.A.D.C.T.A. 53/45 (46 S.D.C. 205), where it was pointed out that the above rule is not based upon any corresponding pro-

vision

in

the

of

the

Supreme

Court).

On the other hand, where a judgment given ex parte has become null and void by reason of failure to serve it on the defaulting party within twelve months from its date, under C.P.R., r. 214, the effects of the merger plaintiff from on,

are also removed and resuming his original gin

there is nothing claim ((C.A.D.C. :

to prevent the H a. 19/57 /57, 15

RENEWAL

OF

ACTIONS

51

action, the relief claimed, the forum, the parties or any other element of the suit. In the present essay, however, we shall not deal with that aspect of the problem. We shall, on the contrary, assume that after the failure of his original claim, the plaintiff candidly

decides

to institute

another

action,

identical

in all

respects, or — which amounts to the same thing — that all his efforts at camouflaging the identity of claims prove futile and of no avail. In other words, in our present challenge to the doctrine of direct estoppel, it is an agreed premise that, for the sake of argument, the dice will be heavily loaded in favour of such estoppel. Nevertheless, anyone familiar with the trend of judicial opinion and practice is aware that, even inside this central bastion of res judicata the assailant’s prospects are not irretrievably gloomy. Numerous are the instances where a suit will be entertained notwithstanding the failure of a previous proceeding for the same object; and those will be discussed here in the framework of Israeli law, as compared with English law, from which it derives, and American law, with which it is also connected.

5.

Parallel approaches.

In the Anglo-Saxon countries the possibility of renewing a lost suit depends largely upon the manner in which the suit failed. It will be denied whenever the former action has been

dismissed

‘on the merits’;

but if, on the contrary,

the

dismissal was not on the merits, there will generally be nothing to prevent the institution of another claim.’ It cannot be denied that the same test is sometimes resorted to in Israel — the influence of English law is too powerful for the position to be otherwise. But in this country the test ‘on the merits/not on the merits’ has gradually come to be combined with another, autochthonous, test, derived from the distinction between the dismissal and the 7. It is noteworthy that no such distinction is made where the plaintiff does recover judgment. This may be due to the assumption that, in such event, judgment is necessarily on the merits (Halsbury, Vol.

15,

§

380).

But

quaere

whether

this

is

inevitably

so,

since

judgment may also be given for a plaintiff by consent or by default of appearance or pleading on the part of the defendant.

52

S. GINOSSAR

striking out of an action. During several decades there has build been a marked, if somewhat unconscious, tendency to d up the distinction on lines running parallel to the test adopte a in England, so that they may be said to coincide up to and al dismiss n betwee tion certain point. Thus, the distinc striking out, which will presently be explained and analysed, while constituting an original feature of Israel law, is so closely knit with the ‘merits’ test that it is capable of reflecting some light upon some of the most controversial aspects of the doctrine of res judicata. It is therefore proposed, first to describe how the notion of striking out of a proceeding has emerged and developed; then,

its scope

to discuss

and

and,

significance;

finally,

to

implications.

appreciate its manifold

OF THE STRIKING Il. ORIGIN AND DEVELOPMENT OUT OF PROCEEDINGS IN PALESTINE AND ISRAEL. Classes of failure of a proceeding in English law.

6.

The legal vocabulary of Palestine has to a great extent been created by Mandatory legislation, drafted in the English tongue® and adapted from English sources. Thus, in the Civil Procedure Rules, 1938,° based mainly upon the English Rules of the Supreme Court, the unsuccessful determination of an action is expressed by various terms, all borrowed from the English model and commonly used in English texts, such as dismissal,

discontinuance,

stay, and

abatement. Each of these terms relates to a distinct mode of ending the proceeding. ‘Dismissal’ has at least two different meanings. It may refer to a conclusive rejection of a proceeding, based upon 8.

Under

art.

82

of the

Palestine

Order-in-Council,

1922,

ordinances

and other enactments were to be published in English, Arabic and Hebrew; and in the case of discrepancy between these texts, it was laid down in sec. 12 of the Interpretation Ordinance, 1929 34 of the Interpretation Ordinance, 1945), that the English

(later, sec. text should

prevail. This provision still applies in Israel, but sec. 16 of the Law and Administration Ordinance, 5708-1948, authorises the re-publication of Mandatory ordinances in a new, revised Hebrew text destined to supersede

the English

text,

The

first

was the Interpretation Ordinance itself. 9, Palestine Gazette, Sup. 2, no. 755

ordinance

to be so

of 31.5.1938,

p. 111.

republished

RENEWAL

the

exhaustive

hearing

strict, technical,

and

sense,

OF

ACTIONS

trial

however,

53

of all the issues, it serves

to

In its

indicate

the

disposal of the action against the plaintiff upon some less conclusive ground, such as: lack of evidence, failure to appear, want of prosecution or other non-compliance with the rules of procedure. The varying scope of ‘dismissal’ raises problems which will be discussed below. ‘Discontinuance’ is the result of the withdrawal of an action by the plaintiff himself. :° ‘Stay’ means the suspension of a proceeding by order of the court by reason of some obstacle, which may be either temporary or final. ‘Abatement’ of an action occurs “when, from some supervenient cause, one of the parties is no longer before the court”. Under the Civil Procedure Rules, as originally enacted in 1938, such cause could include the death, insolvency or marriage of a party." 7.

Emergence

But, in fifth term Like in Procedure 10.

of ‘striking out’.

addition to the four terms enumerated above, a came to be used in Palestine, namely ‘striking out’. England, that expression also occurs in the Civil Rules with reference to some isolated element in

C.P.R.,

rr. 185-6.

The

first of these

1955 (vide infra, § 22). 11. Instances of temporary

stay

and

possibly

instances

and

292(3).

The sense,

also in .‫ע‬‎ 72, —

are

term ‘stay’ also appears, either in various Palestine ordinances,

two

given

rules was in

of final

C.P.R.,

amended rr.

111,

in 286,

stay, in rr. 6, 289(2)

in the former or in the latter such as Arbitration Ordinance.

sec. 5; Companies Ordinance, secs. 155-7; Bankruptcy Ordinance, 1936, sec. 10; Land (Settlement of Title) Ordinance, sec. 6; and Civil Wrongs Ordinance, 1944-7, sec. 67.

Moreover, it is occasionally used in the Rules — like the expression ‘striking out’ (vide infra, § 7) — as applying to an isolated phase n a proceeding,

such

as

the

execution

of a

judgment

or

order

(rr.

250.

sub Albatement. with Death, Insolvency

and

331-2). 12. 13.

Mozley & Whiteley, Law Dictionary, See Part XIX of the C.P.R., dealing

Marriage of Parties, which was extensively amended in 1945. Neither abatement nor striking out is mentioned in the enumeration of r. 96; while in r. 18 of the Court Fees Rules, 5717-1957, striking

of

out

the

such

as

is

added,

C.P.R., ‘fail’

but

couched (r.52(4)),

abatement

in or

is still

negative

form,

‘be defeated’

omitted.

only

(r. 66).

In

other

general

provisions

terms

pccur,

. GINOS GINOSSAR Ss.

54

a proceeding, such as: a party,*‘ a matter in a pleading, *° an issue,?° or even a statement of defence-*7 But independently thereof, the term striking out is used in the Rules and in several other enactments in force in Israel in another sense, almost unknown in England,’ namely, in connection 14. of the 15. of the 16. Issues tirely 17.

(vide n. 31).

It will be noted

it possible

although of a

that, independently

to strike

modelled

statement

out

“any

of claim

and

not

O.16,

r.11,

to

O.14,

1.27,

Part XI on the Settlement of R.S.C. They were almost enr. 21, of the while

generally,

rule, refers

does

upon

corresponding

thereof,

pleading”

on that English

based

both

C.P.R., r.67(2), and M.C.P.R., r.59, English R.S.C. C.P.R., r.124, and M.C.\P.R., r.109, English R.S.C. C.P.R., r. 139(2). The provisions of were not based upon the English revoked in 1945. C.P.R. 161, corresponding to O.31,

English

O.25,

r. 21

Rules.

r. 4, makes

of our

C.P.R.,

only to the striking

empower

a

court

to

out

strike

out

another pleading, such as a statement of defence (Mo.D.C.T.A. 932/53, 9 P.D.C. 128). As regards the striking out of a statement of claim, this is also, strictly speaking, only the striking out of an element in a proceeding, and

in English

practice

such

striking

out

entitles

the

defendant

to

a

separate judgment dismissing the action. But this practice has. not been followed in our country, where the striking out of the statement of

claim

actually

determines

the

proceeding,

subject

to

its

renewal

under r. 23. It is also relevant to note in this respect that under the C.PR. the statement of claim is the instrument by which the action s instituted (r. 7), while in England an action is commenced by the issue of a writ (O.1, r.1) and a statement of claim is not always necessary (Odgers,

Principles

of Pleading

and

Practice,

15th

ed.,

1957,

pp.

10-1,

75). It may therefore be said that, in Israel, the striking out of a statement of claim is tantamount to the striking out of the very action which is instituted thereby. Cf. the following dictum in C.A. 54/42 (9 P.L.R. 306; 42 S.C.J. 324; 12, Ct.L.R. 143): “Paragraph 1 of the

defence asks that the action be struck out, meaning the statement of claim should be struck out.” 18. The dictionaries Defined) and Stroud

do

not

even

contain

of Burrows (Words (Judicial Dictionary

a definition

of

presumably

and Phrases of Words and

‘striking

out’.

Neither

that

Judicially Phrases)

does

the

expression appear in A.C. Freeman, A Treatise of the Law of Judgments (Sth ed., San Francisco, 1925, 3 vols.), at pp. 751 & sqq.

Isolated English cases refer to the striking out of a case. Thus,

Elridge v. Burgess

7 Ch.D.

(1876)

411, an action

having

abated

in

by the

bankruptcy of the plaintiff after notice of trial, and no notice having been served on the trustee, the court held that it could “only order

the

10

action

T.L.R.

to be struck

142,

an

out

appeal

of the

was

list”.

allowed

In Breed

from

the

v. Jackson Judge’s

(1893)

refusal

to

restore to the list an action which had not been tried, the parties having been taken by surprise when their case unexpectedly reached its turn to be heard. In the notes to 0.36, r. 32, the Annual Practice refers 0 this action as having been struck out, but the report itself makes no mention of it. In the notes to the preceding rule it is also stated that, where neither party appears at the trial, the action is “struck out of

RENEWAL

OF

ACTIONS

55

with an action or other proceeding as a whole. The striking out of an action has eventually emerged as an autonomous method of determining a proceeding and has gained full recognition as such, in contradistinction to the process of dismissal. Both these terms have from the outset been given a meaning noticeably different from that attached to them in their original surroundings. In particular, the strict technical meaning of dismissal has shifted, as it were, to make place for its rival, striking out.

This inconsistency in the use of basic legal terms was inevitably bound to create confusion.” In order to remove it, there is no safer way than to retrace the history of the use of these expressions from the start and to follow, in the light of judicial precedent, the meaning ascribed to them in the successive statutes in which they occur. 8.

‘Striking out’:

(a) in Ottoman legislation.

Insofar as can be ascertained, *° the Ottoman Code of Civil Procedure of 1879 contained no provision for the striking the list’, and this practice is also described by Odgers (op. cit., p. 303), but no authority is cited in support of this statement. 19. Typical examples of uncertainty caused by the inaccurate use of words in judgments are afforded by C.A.D.C.T.A. 21 & 95/44 (44 S.D.C. 351) and C.D.C.T.A. 104/45 (46 S.D.C. 223). See also n. 37 and 38, infra. 20. The interpretation of Ottoman legislation confronts the lawyer with problems additional to those inherent to the interpretation 5 statutes generally, for it is necessary first to establish the exact text of

the

law

in

the

original

Turkish

language,

and

then

to

secure

an

accurate translation thereof. This is particularly awkward when the statute to be interpreted has — as in our case — long since been repealed, even in its country of origin, and there is then no alternative but to rely upon text-books or other unofficial versions. Cf., on the construction

of

art.

80

of

the

Ottoman

Code

of

Civil

Procedure,

C.A.

87/37 (4 P.L.R. 228; 1937 S.C.J. (N.S.) 213; 1 Ct.L.R. 170), where no less than five different versions of the said provision are quoted in full and

compared

(and

where,

by Trusted, C.J., that thus created be filled law and the doctrines ity of art. 46 of the (5 P.D.C. 225), where eventually,

Court

C.A.

62/52

of Israel,

while

text of the law, based specially prepared at

veteran article

Jerusalem on

the

(9 P.D.

view

of

1047;

deploring

its

obscurity,

versed

13 P.S.C.

the

its decision the request

lawyer

subject

in

it was

suggested

the article be ignored altogether and the Jacuna by resorting to “the substance of the common of equity in force in England” under the authorPalestine Order-in-Council); C.A.D.C. Jm. 86/50 a sixth translation was also considered; and, where

absence

the

Supreme

of an

official

upon a seventh version of art. 80, of the court by M. Levanon, a

in Ottoman

in Hapraklit,

393),

continued

vol.

XIII

law.

And

(1957),

pp.

see 116

the latter's &

sqq..

56

S. GINOSSAR

out propriis verbis of an action or other proceeding. Yet it is possible to find the potentiality thereof in the chapter dealing with the procedure by default. While, in the case of the defendant’s default, judgment was given against him, ** it was laid down that, where the party in default was the plaintiff

himself,

his

claim

should

be

“provisionally

missed’, ** such dismissal being no bar to any fresh which the plaintiff might wish to institute. **

dis-

action

The Magistrates’ Law of 1913, applicable to proceedings in the lower courts, although couched in somewhat different language, was substantially to the same effect. But, instead of temporary dismissal, the proper judgment to issue in the event of the plaintiff’s failure to attend at the hearing was termed a “temporary striking out” of the action** and was made subject to the plaintiff’s right of opposition thereto within a period of five days.?* 9.

(b)

In early Mandatory

legislation.

Whatever the position may have been in the days of the Ottoman Empire, it was amply clarified in the early years of the Mandatory period with the enactment, in 1928, of

21. Articles 144-5, 151 & sqq. 22.

Article

142,

as

translated

by

Hooper

(The

Law

of Civil

Pro-

cedure, of Iraq and Palestine, Basrah, 1930, pp. 17 and 103). Young's translation into French reads “renvoi provisoire” (Corps de Droit Otto-

man, Oxford, 1905-6, vol. VII, p. 199). Unfortunately the relevant chapter was omitted in Laniado’s Hebrew translation of Ottoman Laws (Jerusalem, 1929), since at the time of publication it had already been replaced by Mandatory legislation, 23.

Article

24.

211016

Magistrates’

143,

47, as translated Law

in Palestine,

by A. A. Tel-Aviv,

Shems 1934,

p.

(A 62;

Manual but

of

the

in Laniado’s

compilation (op. cit., p. 120) the version proposed is more in line with that of the Ottoman Code of Civil Procedure ‫)ינמז‬‎ ‫םילטבמ תא ותעיבת ןפואב‬ 1.6. the claim is temporarily dismissed). As regards Hooper, he offers no translation of the Magistrate’s Law and confines himself to the statement that the said Law “contains special provisions as to procedure” (op. cit., Introduction,

p. V).

25. Article 49. Notwithstanding the similarity between the two laws, it will be noted that in a magistrate’s court the plaintiff’s right to restore his action was not left to his sole discretion, but was made subject to the success of his opposition to the judgment of dismisal by default, since the opposer had to state the grounds of his opposition and, probably, to show that he had had good cause for not appearing at the original

hearing

(Shems,

op.

cit., p. 65).

RENEWAL

OF ACTIONS

57

two sets of Judgment by Default Rules, ** which were substituted for the Ottoman provisions referred to above. Under those Rules, in the event of the plaintiff failing to appear, the action was to be “forthwith struck out, without prejudice to the plaintiff’s right to institute a fresh action upon payment of the prescribed fees.” ?7 Subsequently, in the Court Fees Rules, 1935, a complementary provision was inserted, expressly reducing by half the amount of fees payable on ‘restoration’ of an action or matter so struck out, provided application therefore was made within a certain time after the striking out; and this partial exemption from payment of fees has been retained in similar terms up to this day. in the present Court Fees Rules made in Israel as recently as 1957. °° When in 1936 the office of Registrar was created in the superior courts of Palestine, the ordinance setting out the powers and duties of the Registrar specifically mentioned the power of striking out of an action or appeal “for want of prosecution or otherwise under the circumstances as prescribed

by any

law

for the time

being

in force”,*

adding

that the Registrar would thereby be “deemed to exercise the powers of the court”. *° This ordinance was obviously enacted in view of the impending replacement of the entire Ottoman Code of Civil Procedure by Rules of Court to be based mainly upon the English Rules of the Supreme Court. ** 10.

(c)

In the Civil Procedure Rules, 1938. The turning point in the history of civil practice and procedure in Palestine was effected by the coming into force of the Civil Procedures Rules, 1938. (District and Land Court) Rules, and 26. Judgment by Default of Judgment by Default (Magistrates’ Courts) Rules (Drayton, Laws Palestine, vol. III, pp. 2339 and 2341, respectively). 27.

R.2(1)

of either

set of Rules.

Hatakanot 28. R. 10 of the Court (Fees) Rules, 5717-1957 (Kovets no. 687, p. 1110). 29. Sec. 6(d). ' 0 in the Civil 31. Reference to the Registrar had already’ been made e Gazette (Sup. Palestin the in d publishe (sic), 1935 Rules, re Procedu three months 2, no. 582, p. 191) on 9.4.1936 and due to come into force 1, later. The Registrars no. 623, p. 252).

Ordinance

was

published

on

15.8.1936,

(Sup.

58

₪. GINOSSAR

As in the English Rules of the Supreme Court, from which

they are of 1938 ceeding (in the

derived, the term most commonly used in the Rules to describe the failure of an action or other prois ‘dismissal’. But the phrase ‘striking out’ occurs original version) no less than four times in this

connection,

viz:

(a) in r. 21, on the striking out of a statement of claim on any of the four*? preliminary grounds there specified; while r. 23 further provides that such striking out does not operate as a bar to the presentation of “a fresh statement of claim in respect of the same cause of action”;

(b) in r. 137(3), on the striking out of a case by reason

of

the plaintiff’s failure to apply for determination of the issues; 5

(c) in r.141, giving power to the court to strike out an action for failure to apply to set it down for hearing within _ the proper time; *? and — (d) in r.337(a), on the striking out of an appeal for failure by both parties to appear at the hearing. This rule also

provides for the possibility of readmitting the appeal upon application thereto by the appellant cient cause being shown.

and upon

suffi-

As compared with the previous legislation on striking out of a proceeding, the four rules listed above call for the following remarks: (1). In the Civil Procedure Rules the term ‘striking out’ seems to have been taken in the same sense as in previous enactments, to wit, as a mere provisional rejection of the proceeding forming no obstacle to its re-instatement. (2) On the other hand, the main instance of striking out known before 1938 is omitted from the Rules since, under r.187(c), in the event of the plaintiff’s failure to appear at

32. Two

of

them,

relating

to

failure

have probably been impliedly repealed Rules, 5717-1957 (vide n. 28). The two are discussed infra, § 28). 33.

This

rule

was

revoked

in 1945.

to

pay

the

proper

court

fees,

by the recent Courts (Fees) other grounds of striking out

RENEWAL OF ACTIONS

59

the hearing, the defendant who appears is now “entitled to judgment dismissing the action.” + (3) In none of the cases listed is the striking out justified by lack of evidence or similar insufficiency ‘on the merits’ , but is due rather to some defect in procedure, such as want of prosecution. (4) Notwithstanding the provisions of the Registrars Ordinance mentioned above, the four rules dealing with the power of striking out contain no reference to the Registrar and apparently reserve the exercise of that power to the court itself. 11.

(d) In the Magistrates’ Courts Procedure Rules, 1940.

By a strange coincidence, the Magistrates’

Court Procedure

Rules which were made in 1940 on the pattern of the Civil Procedure Rules, 1938, contained not one single provision corresponding to any of the four rules considered above. The

reason

therefore,

however,

is quite

simple.

Indeed,

the

very occasions on which an action or proceeding is likely to be struck out in a superior court (preliminary point; deterof issues;

mination

setting

down

hearing;

for

had

appeal)

been excluded from the procedure applicable in magistrates’ courts. An anomaly which is less easy to explain is that, while in a District Court non-appearance of both parties at the hearing is a reason

for dismissal

of the action, as is the non-appear-

ance of the plaintiff only, in a magistrate’s court — for some mysterious reason — it may merely lead to a striking out of the case. *° 34. The scope of this rule will be discussed infra, § 26. 35. Compare the text of the corresponding provisions: C.P.R., 1938 M.C.P.R. 1940 “187. On the day fixed for the "137. On the day fixed for the hearing or adjourned hearhearing or adjourned hearing

—

(a) if due has

been

appears, ther

ing

notice

of the hearing

given

the

adjourn or

action,

subject

and

Court

no

party

may

dismiss

—

(a) if no party appears the court may

ei-

out

the

either

the

provisions

adjourn

case

or strike

subject

of these

to the

rules.”

to the provi-

sions of these rules;” Compare the English practice

described

by Odgers (op. cit.) (supra, n. 18). The remark contained in C.D.C.T.A.

in the Annual

104/45

(46 S.D.C.

Practice

and

223) to the

60

S. GINOSSAR

12.

Precedents

on the construction of ‘striking out’. Whatever the case may be, there is ample judicial authority for the construction of the term ‘striking out’, as distinguished from ‘dismissal’ of a proceeding, the latter being reserved to express a final and conclusive rejection of the proceeding. Thus,

in C.A.

137/45°°

the

Supreme

Court

considered

a

case of dismissal for want of prosecution under r.134 of the M.C.P.R. and criticized the note which the magistrate had added to his decision and which was worded as follows — “The case not being dismissed on the merits, the Plaintiff can of course renew on payment of the usual fees.” The Supreme Court held the note to be erroneous — “because Rule 134 does not provide that the action should be struck out, but that it should be dimissed.”

The distinction between dismissal and striking out of an appeal was also stressed in C.A. 431/44. *” In particular, as regards the striking out of statement of claim under

r.21 of the Civil Procedure

Rules,

a similar

construc-

tion appears justified both by the provision of r.23, expressly reserving to the plaintiff the right to institute a fresh action, and by the consequent view that, for the purposes of an appeal, such striking out is not a decree as defined in rule 2, that is to say, an adjudication “conclusively determining the rights of the parties’, but is an order appealable by leave only. ** Following the same line it was held by the Supreme effect that the M.C.P.R. “contain no provision for striking out either provisionally or not at all” is probably due to an oversight. 36. 12 P.L.R. 399; 45 A.L.R. 426. 37. 45 A.L.R. 342. Compare Mo. 16/49 (2 P.D. 526; 2 P.S.C. 137), where an appeal from C.D.C.T.A. 104/45 (quoted in n, 35) was .ncorrectly struck out, instead of dismissed, owing to the appellant’s failure to deposit security for costs under C.P.R., r. 327. Conversely, in C.A.D.C.T.A, 219/42 (41-2 L.R.T.A. 142), the action had ‘been struck out by the magistrate under M.C.P.R., r.134, although the correct judgment should was not a case of both

have been to dismiss the parties failing to appear

nevertheless held that the plaintiff was no

appeal

having

been

lodged

against

action, since (cf. n.35). It

this was

at liberty to reinstate his claim, the

judgment

of

striking

out,

which was therefore finally binding. This authority was doubted in Mo.D.C.T.A. 982/54 (10 P.D.C. (Summaries) 170). 38. C.A, 219/40 (7 P.L.R. 600; 40 S.C.J. 480. 10 Ct.L.R. 10); C.A. 54/42 (9 .‫קת‬‎ 306; 42 S.C.J. 324; 12 Ct.L.R. 143). Compare: C.A. 366-7/43 (11 P.L.R. 292; 44 A.L.R. 100), where the test adopted was purely formal, being the term chosen by the court in its decision,

and

C.A.

191/44

(11 P.L.R.

292;

44

A.L.R.

574),

where,

RENEWAL

OF

ACTIONS

61

Court of Israel % that, where an application is rejected as defective in form, the proper decision is to strike it out, and not to proceed to deal with it on the merits and eventu ally to dismiss it.‘ 13.

(e) In Israeli legislation.

Thus, by the time the State of Israel was proclaimed, the

concept of striking out an action in the sense described had

firmly taken root in the law of the land. This feature was per-

petuated and reinforced

by subsequent

enactments,

in which

greater efforts were made at consistency than in the former,

Mandatory, legislation. Two of the numerous amendments to the Civil Procedure Rules introduced since the creation of the State bear witness to that effect. In 1954 a significant addition was made to r.337(c), dealing with the non-appearance of the appellant at the hearing at the appeal. Under the original rule, the appellate court had in such event the option between two alternative courses: either to hear the appeal in the absence of the appellant, or to adjourn the hearing. The amendment“! now allows the court a third possible course, namely, to strike out the appeal, a decision which

determines

the appeal but leaves the appel-

lant at liberty to apply within fifteen days for its re-admission; and such application may be granted for sufficient cause and upon such terms as the court may think fit, as in the case of non-appearance of either party to the appeal. *? The other amendment consists in the insertion of a new provision, on

the

contrary,

element case

r.361A,

being

under

the

authorising

this

factor

substance

consideration

the

a court

was

held

decision

39.

C.A.

present 40.

viz., one

was

114/51

lower

court

to be

(7 PD.

immaterial,

decision;

had,

any

on

and

a

of the merits

proceed-

the

decisive

since

in the

preliminary

objec-

of the case, the en-

₪ 6

317;

13

PSC.

110),

the

contrary

per

Olshan,

J.

(at

C.J.). Incidentally,

that, on

held

be

of the court’s

tion, dealt fully with all the aspects suing

to

to order

where

the merits

in the

Restatement

a judgment and

the

is based

other

not

on

upon

two

the merits,

view

is expressed,

alternative

based upon the same cause of action is ordinarily barred comment c.). Cf. also C.A, 191/44, quoted in n. 38, supra. 41,

Kovets

42.

Vide supra,

Hatakanot,

no.

449

§ 12 and C.A.

of 24.5.1954,

431/44,

grounds,

a subsequent

p. 864.

quoted in n. 37.

action

(§

49,

62

S.

GINOSSAR

ing to be struck out if it appears that it can no longer be usefully prosecuted, subject to the power of the court to set aside such order upon the application of a party affected. ** In addition, in two laws passed by the Knesset, the court has been offered the option, when rejecting certain claims brought under these statutes, of either striking them out or directing that they be dismissed. The following extract from

sec.

20 of the Absentees’

Property

Law,

5710-1950, **

may be cited here: “(b) The court which deals with a claim for a debt due from, or in connection with, any property of an absentee

or a claim for the discharge of any other obligation incurred

by

contained

an

absentee

may,

notwithstanding

anything

in any other law —

(1) postpone from claim,

in order

time to time the hearing of the to enable

the submission

of evid-

ence as complete as possible; (2) strike out or dismiss the claim if it has not been proved beyond all reasonable doubt.” The statute would certainly not have mentioned these two modes of rejecting a claim, were it not for the substantial difference between them. Consequently, in C.A. 127/56,* an appeal having been lodged against a judgment dismissing such claim for insufficiency of evidence, the Supreme Court found that the lower court had been well advised in rejecting the claim, but that the judgment should nevertheless be varied by substituting a mere striking out for the order of dismissal. The effect of such substitution could only be to allow the unsuccessful plaintiff-appellant to renew his claim whenever he might feel able to discharge the burden of proof required by the statute. Section 13 of the German Property Law, 5710-1950, 55 is 43. Kovets Hatakanot, no. 566 of 17.5.1955, p. 218. 44. Laws of the State of Israel, vol. IV, p. 68, at p. 75. The original Hebrew text of the passage underlined by us reads: nx ‫תוחדל‬‎ ‫ וא‬,‫קוחמל‬

45.

10 P.D. 1627;

25 P.S.C.

368.

46. Laws of the State of Israel, vol. IV, p. 142, at p. 146. It is relevant to point out that the recent Law of Limitation,

‎*‫התביעה‬

57181958, contains the following provision: “15. Where an action filed in a court, including a religious court, is dismissed in such manner that the plaintiff is not precluded from

RENEWAL

OF

ACTIONS

63

couched in terms similar to those of the provision above and should be similarly construed.

14.

quoted

Striking out as distinguished from dismissal.

The history of striking out of a proceeding in Palestine and, subsequently, in Israel clearly shows the formation of a me-

thod of determining an action provisionally without impairing

the plaintiff’s right to embark upon a fresh action for the same object. In this respect striking out contrasts with dismissal, and the common use of both terms in Israeli legislation and case-law points to two distinctive legal conceptions.

15.

Parallel with criminal procedure.

Incidentally, an interesting comparison may be drawn here between civil and criminal procedure. The classical type of criminal trial leads either to a conviction or to an acquittal. The ordinary form of the plea, as well as that of the verdict, allows only for such alternative black-or-white solutions. As

a matter

of fact, however,

there

is room

for a more

variegated range of possibilities. In particular, a court may, without acquitting the accused, discharge him; and in our legislation there is express provision to that effect. Thus, in a magistrate’s court, where the complainant withdraws his complaint before the accused has been called upon to plead, the court may discharge the accused, and such discharge is no bar to a subsequent prosecution on the same charge. “ Moreover, where a plea in bar raised by the defence is found to be justified, the court may either order an amendment of the charge, or dismiss the charge, either by discharging the accused or by acquitting him, as it may decide. ** instituting that

a fresh action on the same

omitted

in calculating

filing

such

between

elapsed

the period

and

cause such

of action, the period dismissal

shall

be

of limitation.”

(Sefer Hahukkim no. 251 of 6.4.1958). 47. Cr.A. 144/43 (10 P.L.R. 619; 43 A.L.R. 781). By an irony of fate

such discharge was mistakenly referred to as a ‘dismissal’. Vide also Cr.A.D.C.Jm. 1/45 (45 S.D.C. 62) and the authorities there cited. Cf. Land v. Land [1949] P 405. 48. This power was expressly given to criminal courts in summary trials, by an amendment made in 1952 to the rules governing such trials

(M.C.P.R.,

r.

Rules, r.6B(3)). No sucn amendment

267A(3),

and

was made

District

Courts

(Summary

; to the Criminal Procedure

Trials)

\ (Trial upon

64

S. GINOSSAR

Thus,

while

a judgment

field of criminal

of acquittal

procedure,

corresponds,

to the dismissal

in the

of a civil action,

a mere discharge, giving no rise to a plea of autrefois acquit, is tantamount to the striking out of the action as this term is understood in Israel.

IT. THE DISTINCTION BETWEEN STRIKING OUT AND DISMISSAL DISCUSSED 16.

Looseness of terminology.

The position would be perfectly clear if both terms ‘striking out’ and ‘dismissal’ were consistently used in their proper, technical, and mutually exclusive, meaning. This, unfortunately, is not the case by far. On

the

one

hand,

the

alternative

use

of the

expression

‘striking out’, with reference to an isolated element in a proceeding, and not to the proceeding itself, — as has already been pointed out“ — regrettable though it may be, is no cause for alarm, since the context will usually show in what sense it must be understood. But a far greater source of confusion lies in the widespread. looseness in the use of the word ‘dismissal’. An old Scottish decision complains of this, and describes the proper terminology as follows:

“We have had this matter again and again before us, and if there be a distinction established in our practice, it is, that the word

‘dismiss’

is used when

it is open

to the

Information) Ordinance, which would have necessitated the passing of a law by the Knesset. It may nevertheless be assumed that a District

Court would felony,

not

hesitate

to exercise

the

same

power

in the

trial

Here again English authoyities are less consistent in the use of terminology, Although they also distinguish between an acquittal a mere dismissal of the information or charge, it has been held even an acquittal is not necessarily a bar to another indictme nt the same offence, especially if it is based upon a plea in bar, such plea

of insufficient

and Practice,

33rd

indictment

defective summons, Jenkins 600; Davis v. Morton [1913] 1 KB. 193 D.C.

49.

Vide

supra,

(Archbold,

ed., § 272, 275-6).

§ 7.

See

Criminal

Pleading,

of a

legal and that for as a

Evidence

also, on the ‘dismissal’

of a

v. Merthyr Tydvill U.D.C. (1899), 80 L.T. 2 K.B. 479 D.C.; Owens v. Minopiro [1942]

RENEWAL

parties to bring another when it is not open.” ©

OF

ACTIONS

action,

65

and

the word

‘assoilzie’

The Scotch idiom “assoilzie’ may be perfectly appropriate to to its meaning, deriving as it does from the Latin absolvere and the French absoudre, equivalent to our ‘absolve’ or acquit. But it has practically disappeared from the English tongue, and the form ‘assoil’ is an archaism which is hardly to be found nowadays in English legal texts. A still more startling — and disappointing — feature disclosed in the above quotation is that in England the proper meaning of the word ‘dismissal’ coincides with that of its antonym ‘striking out’ in Israel ! 3 Had the English usage been constant in this respect, it would never have imported into Palestine the term ‘dismissal’ to describe precisely the converse of what it is supposed to convey to English lawyers. The latter, however, have not hesitated to use it in a far wider sense, including also that of a dismissal on the merits. That is why in England, as also in the United States, the term has acquired a double meaning and serves to indicate either a dismissal on the merits or a dismissal not on the merits. ” Such laxity was inevitably bound to cause further confusion in our

country.

50. Per Lord Deas, in Stewart v. Greenock Harbour Trusts (1868) 6 Macph. 954, at p. 958, as quoted in Glasgow & South-Western Railway

Co. v. Boyd ferline,

and Forrest

[1918]

S.C. 14 H.L., per Lord

Shaw

of Dum-

at p. 32.

51. Armour v. Bate [1891] 2 Q.B. 233, at pp. 235-6. The dictionaries of Osborn (A Concise Law Dictionary), Wharton (Law Lexicon) and Bouvier (Law Dictionary, Cleveland, 1940) describe dismissal as a pe-

nalty for plaintiff’s

default

or want

of prosecution.

Only Radin’s

Law

Dictionary (New York, 1955) refers to the possibility of a dismissal on the merits, while Mozley and Whiteley’s Law Dictionary does so only

in respect In

of equity

South

Africa

suits. the

term

‘absolution

from

the

instance’

is used

as

equivalent to the English term ‘dismissal’ and to our ‘striking out’, leaving the plaintiff at liberty to take fresh proceedings ‘without having to face a plea of lis finita”. To raise such a plea there must be a ‘judgment for the defendant’. (J. Herbstein and L. de Villiers Van Winsen,

The

Civil Practice

of the Superior

Courts

in South

Africa,

Juta

& Co., 1954, pp. 380-2), 52. ment,

Annual Practice, 1958, p. 2009; Freeman, § 53. Vide Halsbury, vol. 15, § 380.

op. cit., $ 753. Restate-

S. GINOSSAR

66

17. Determination of a case ‘on the merits.’ It may be relevant at this stage to investigate what is really meant by the merits of a case. This has been attempted hitherto more by way of enumeration and exemplification than by definition and systematic reasoning. The best explanation presumably lies in the ordinary practice of courts of trial. An action is brought; pleadings are filed on both sides; issues are settled; the action then comes

up for hearing before the court; each party prepares his evidence and adduces it; argument is heard; eventually judgment is given, determining the issues and, by way of consequence, the fate of the action itself. Such a judgment is, by all standards, a judgment on the merits, conclusively binding upon the parties, either in respect of the same

cause of action

adjudicated upon or, collaterally, in any other subsequent litigation that may arise between them. Were it otherwise, the entire doctrine of res judicata might just as well be discarded. Its main justification lies in the assumption that both parties have taken full advantage of every piece of evidence that might have had a bearing on the outcome of the action, and the judgment so obtained is then deemed to be the most reliable determination of the issues raised and litigated. The question at once arises, whether such determination retains its conclusive character where fresh evidence, un-

known at the time of trial, is subsequently discovered. The doctrine

can

but

assent

to this momentous

consequence. **

53. Halsbury, vol. 15, § 361; Freeman, op. cit., §§ 728, 731. Israeli courts have shown some reluctance to enforce the principle strictly

and

some

laxity

has

been

tolerated.

Here

are

two

instances

of

this tendency, which is not completely free from criticism. The first one is that of an action for eviction of a tenant based upon the landlord’s need of the premises accommodation for the defendant. A

and the availability of alternative former action on the same ground

had been dismissed, the plaintiff having failed to satisfy the magistrate that his own flat was too small for his own requirements and those of his relatives residing with him. He nevertheless launched a second suit on the same cause of action, the sole new element being the allegation

that

his wife

was

suffering

from

ill health,

and

he

succeeded

in proving that she was affected by three different ailments. But, as regards two of them, the magistrate found that the suit was premature, in that

those

diseases

were

not

shown

to exist

at the

time

of the

institution of the claim, but had only been detected at a later date, And, as regards the third disease, it was found that she had already been suffering from it at the time of the previous suit, so that it amounted

RENEWAL

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ACTIONS

67

Again, any other solution would jeopardize our traditional system of procedure, based on the unity of trial and judgment. It is only where it is shown that judgment has been obtained by fraud that its finality may be impeached; but, again, this can only be done by means of some other judgment, setting the

aside

former

that

one,

is to say,

by the

of a

exercise

direct attack on the judgment itself, comparable to an appeal. Descending one more step down the scale, let us assume that, instead of making a positive or negative finding of fact, the court merely decides that there is no proof — or no to fresh evidence in support of the initial cause of action and was, as such, covered by res judicata. On appeal, however, the judgment was reversed by the District Court of Haifa (C.A.D.C. Ha. 42/50, 6 P.D.C. 360) which, gation Co.

relying upon (1865) 1 Ch.

the authority of Moss v. Anglo-Egyptian NaviApp. per Cranworth, L.C., pointed out to the

change of circumstances that had occurred in the short interval between the two actions. The two more recent diseases, it was said, had probably been in existence at the commencement of the second action and it was immaterial that they had only been diagnosed later. As for the earlier illness, the District Court decided that the landlord’s need for a larger flat was created, not by the objective fact of that illness, but by the

awareness

thereof,

which

awareness

had

not

materialized

at the

time of the first litigation and could not therefore be covered by res judicata. The obvious contradiction between those two arguments passed unnoticed, even in the Supreme Court, where the case was eventually considered, and the judgment of the District Court confirmed (C.A. 210/51, 6 P.D. 656; P.S.C. 155: the point of res judicata was discussed

by Silberg, J., who, on the whole, approved the reasoning followed by the District Court). In the second case, an application to the Rents Tribunal for the assessment of rent was dismissed by reason of the dismissal of an earlier application for failure to prove that the premises were not leased at the material date (1.4.1940) and that the Rents Tribunal consequently had jurisdiction to assess the rent. In the meantime the applicant had

gathered bunal

sufficient

jurisdiction,

evidence

to prove the fact required to give the Tri-

but

Tribunal

the

found

that

the

application

was

barred by res judicata. On appeal, however, this decision was reversed by the District Court of Tel-Aviv (C.A.D.C.T.A, 221/51, 8 P.D.C. 182), where it was held that the onus of proof imposed on the applicant was unusually heavy and, since he had been guilty of no negligence when filing his initial application, the second proceeding was not vexatious and he should in all fairness be given another opportunity to prove his case.

In our

view,

the burden

of proof had

wrongly

been

placed

on

the

applicant’s shoulders in the earlier proceeding, since the issue related to a fact which lay peculiarly within the knowledge of his opponent. This departure from the rules of evidence may serve to explain the subsequent departure, for the sake of fairness, from the basic rules of estoppel by record; but it cannot justify it, for two wrongs cannot make a right. In England, courts sometimes prefer to deal with renewed actions as frivolous and vexatious, rather than as precluded on the ground of res judicata. See in this respect, Macdoughall v. Knight (1890) 25 Q.B. 1; Mackenzie-Kennedy v. Air Council [1927] 2 K.B. 517 C.A., per Scrutton, L.J., at pp. 528-9,

. GINOSSAR ₪6

68

purpose of sufficient proof — of the fact in issue. For the identical with a the actual litigation, the result is of course lay the onus negative finding, against the party upon whom with that onted Confr ? el of proof. But what about estopp dekable remar a in problem, the Supreme Court of Israel, deterthe while cision, °* has reached the conclusion that, se of the mination of the issue was conclusive for the purpo respect action itself and even operated as a direct estoppel in , °° object same very the for hed of any fresh proceeding launc ssing Discu el. estopp it was incapable of creating collateral the scope

exceed

the latter view would

essay

of the present

and we shall therefore confine ourselves to noticing that, in respect of the cause

of action itself, failure to prove an issue

to positive proof against the fact

is treated as tantamount alleged. If we

now

way

our

continue

farther

downward,

and

far-

ther from the merits, we soon reach the conclusion that, in the appreciation of the merits, there is no clear-cut borderline, but a gradual series of points of decreasing intensity to an extent which is almost imperceptible as we pass from one point to another. We would suggest a scale on the following line: 54,

C.A.

(6 P.D.

126/51

313;

429), at §§10:

6 P.S.C.

“The principle... underlying the plea of res judicata, that no ‘finding’ made by a Judge in earlier litigation may ₪6 questioned, ... only applies where the Judge did make a finding, either in one way or in

another, but not, for example, where evidence.

In such

the Judge

a case

thing, and his decision cannot

he dismissed the claim for lack of

merely

that

finds

he has

found

no-

to be the expression

possibly be deemed

of the “truth”. For, failure to find is no finding, and there can be no determination of the “truth” where the truth does not come to light.” In support of this view, Silberg, J., relies inter alia on certain passages in Reg. v. Hutchins (1879-80) 5 Q.B.D. 353, at pp. 355-8 (per

Lush, J. and Field, J.) and, in the Court of Appeal (1880-1) 300, at pp. 302 and 306 (per Selborne, L.J.). The judgment in C.A. 126/51 was followed in CA. 60/55 685;

13 P.S.C.

194:

action

for ownership

of land

and

6 Q.B.D. (10

for injunction

P.D. dis-

missed, in respect of the first object, in view of previous action for ownership which had been dismissed for lack of evidence and, in respect of the injunction, for want of jurisdiction), and in Mo. 255/56 (vide post,

§ 26 and

n. 100).

It was

distinguished

in

C.A.

316/56

(post

n. 115). Cf. also the following foot-note. 55. In C.D.C. Jm. 204/52 (10 P.D.C. 36) it was explained that this phrase should be construed as referring to the cause of action, rather than to the relief or remedy, as might have been inferred from the terms used by Silberg J., in his judgment. Cf. the phrase “for the same or substantially the same cause of action”, in C.P.R., r. 186.

RENEWAL

OF

ACTIONS

69

Overwhelming weight of evidence. Preponderance of defendant’s evidence. Insufficiency of plaintiff’s evidence. Total lack of evidence for plaintiff. Non-appearance of plaintiff at adjourned hearing. Non-appearance of plaintiff at the whole trial. Want of prosecution before trial. Failure by plaintiff to comply with order of court or with rule of procedure amounting to want of prosecution. At what point in this scale will the dismissal cease to be on the merits ? No ready-made answer is possible, and none has ever been suggested. Indeed, like most legal terms, the expression ‘judgment on the merits’ has acquired its own, peculiar, technical meaning. In the words of Freeman, — “To create such a judgment, it is by no means essential that the controversy between plaintiff and defendant be determined

‘on the merits’, in the moral and abstract sense

of these words. It is sufficient that the status of the action was such that the parties might have had their lawsuit disposed of according to their respective rights, if they had presented all their evidence and the court had properly understood the facts and applied the law.” *° So that a judgment on the merits — “need not have been the result of a trial or hearing on controverted facts, if the parties have had a legally sufficient opportunity to present the merits of the controversy and have waived or otherwise lost the right to such hearing...” *” The passage quoted reflects the elusive nature of the notion of merits. In order to determine whether an action that has been dismissed can be started afresh, it is necessary to decide whether the dismissal was on the merits or not; this, again, depends on whether the plaintiff had a “legally sufficient opportunity to present the merits” of his case. Can he not logically be said to have lost such opportunity by failing, at the lowest step of the scale, to comply with some rule of

procedure ? 56.

Freeman,

57.

Ibid., § 725.

op.

cit.

§ 723.

%74:

Ho 7 I:‫‏‬

7‫‏‬1

fel

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‫ו‬

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Site

compo

mont given

S. GINOSSAR

72

own evidence, rests on the case made by the plaintiff and moves the court for a nonsuit. * Whether voluntary or compulsory, a nonsuit is not a judgoperate as a bar

ment on the merits and does not, therefore,

matters, its in which it

to subsequent proceedings involving the same effect being limited to the actual proceeding occurred. 2 Abolition of nonsuit in England.

20.

The opportunity afforded to an unsuccesful plaintiff of renewing his claim is, however, conducive to excessive, if not vexatious, litigation and places the defendant in the awkward position of remaining exposed indefinitely to another devised

were

that methods

therefore,

No wonder,

attack.

to

check such abuse of process. In 1875 a rule of court was introduced in England providing that — “any judgment of nonsuit, unless the Court or Judge otherwise directs, shall have the same effect as a judgment upon the merits for the defendant.” 5 Supreme

of the

Rules

in the

in 1883,

Later,

still

Court

applicable at present, the term ‘nonsuit’ was altogether omit61.

Restatement,

62.

Freeman,

§ 53, comment

₪.

‘““While

op. cit., § 753;

it terminates

the action,

it does

not adjudicate its merits. A nonsuit ‘is but like the blowing out of a candle, which a man at his own pleasure may light again’ (March on Arbitraments, 215)”. After nonsuit had been abolished in England, an English court went so far as saying that a nonsuit “was not a judgment at all” (per Brett, M.R., In re May (1885) 28 Ch.D. 516, at p. 518. 63. 0.41, r.6, of the Rules of the Supreme Court, 1875. A similar provision was inserted into the County Courts Rules as 0.16 r.17, the validity of which was discussed in Poyser v. Minors (1881) 7 Q.B.D. 329, Bramwell, L.J., expressing the minority opinion that the

rule was ultra vires in that it was not confined to a matter ure and practice. He says, inter alia, (at p. 338) — “Why

was

second pute;

not

action? because

a nonsuit

in actions

Because

there

the matter

was

was

no

in the

inferior

judgment

on

courts

of proceda bar

the matter

to a

in dis-

not res judicata.”

Thus, by denying a nonsuited plaintiff the possibility of instituting a claim either in the county court or in any other court, the effect of the

rule

was

rity judgment,

to take

however,

curring),

Came

was

of procedure

one

plained

and

to

defined.

the

away

his substantive

delivered opposite

and

by Lush, conclusion

practice,

which

right

in law.

L.J.

(Baggallay,

that

the

expression

matter

was

The

majo-

L.J., conregulated

amply

ex-

RENEWAL OF ACTIONS

73

ted, and it has consequently been held that there no longer exists such a thing as a nonsuit in the proper sense. “4 In lieu thereof a plaintiff may now, in certain circumstances and under terms, discontinue the action.‘ In the words of

Chitty, Ib. Jc “... after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest... The substance of the provision is that, after a stage of the action has been

reached

at which

adversaries

are meeting face to face, it shall only be in the discretion of the judge whether the plaintiff shall be allowed to withdraw from the action so as to retain the right of bringing another action for the same subject matter. 21.

Restrictions

to nonsuit

in the

United

States.

In the United States nonsuit has not been eradicated on the English model. Nevertheless in most States the inconveniences and hardships wrought by common law practice have been remedied by restrictive statutes.57 Special mention should here be made of Rule 41 of the Federal Rules of Civil Procedure, where the term ‘nonsuit’ has been replaced by the word ‘dismissal’, which may be either voluntary or involuntary. In general outline, voluntary dismissal may be effected without order of the court, either by the plaintiff alone fil64.

Fox

v.

Star

Newspaper

Co.

[1892]

1

Q.B.

636,

per

ALL.

Smith, L.J. 65.

;

O.250fthe

Smith,

L.J.,

Rules

of the Supreme

Court,

(loc. cit.), is “intended toform

which,

a complete

in the opinion of

code applicable to

the subject of discontinuing an action.” In The Kronprinz 256, the fundamental difference between discontinuance

was

explained,

discontinued,

and but

it was

stressed

dismissed,

a

that

bar

if the

would

have

(1887) 12 A.C. and dismissal

action been

had

not

created

been which

would have prevented further proceeding (per Lord Halsbury, L.C., at p. 259). 66. Fox v. Star Newspaper Co. [1898] 1 Q.B. 636, per Chitty, 1. Confirming

this

decision

on

appeal,

Lord

Halsbury,

L.C.,

observed

)]1900[ A.C. 19) — “The old system of nonsuit is manifestly no longer capable of being reconciled with the new procedure either in form or substance.” It

402,

had

nonsuit

67.

previously

that, him

where

been

held

a plaintiff

forthwith;

Restatement,

but

in

has

this

Turner

no

case

§ 63, comments

case is no

a. and

v.

Bowley

at all, the longer

b.

(1896)

Judge

followed.

12

T.L.R.

ought

to

74

S. GINOSSAR

ing a notice at any time before service of the answer (equivalent to our statement of defence), or by agreement of all the parties who have appeared generally in the action. Such dismissal is ‘without prejudice’, unless otherwise stated in the notice of dismissal or stipulation. As

regards

involuntary

dismissal,

it may

be

obtained

by

a defendant, either for failure of the plaintiff to prosecute or to comply with the rules or with any order of the court, or — “after the plaintiff has completed the presentation of his evidence... on the grounds that upon the facts and the law the plaintiff has shown no right to relief.” Such involuntary dismissal, however, does operate 8 an adjudication upon the merits’, unless otherwise ordered by the court or unless the order is made merely for lack of jurisdiction or for improper venue. "5 Incidentally we find here another instance® of judgment which, although not on the merits, is treated as such by way of a statutory fiction. 22. The right of discontinuance in Israel. Nonsuit has never been known under that name in our country. Yet, in addition to involuntary dismissal, on which separate comment will be offered below, the Civil Procedure Rules, 1938, made wide provision for voluntary nonsuit, termed ‘discontinuance’ as in the English model. Under rule 185, as then enacted, a plaintiff was at liberty to discontinue his claim ‘fat any time, at or before the hearing’,, by simply giving notice thereof in writing, such discontinuance being no

bar to a subsequent action “for the same or substantially the Same cause of action”, as provided in rule 186. An important

change,

however,

was

effected

in the Israeli

law of procedure when, in 1955, rule 185 was revoked and replaced by a new rule requiring leave of the court to discontinue an action, even at an early stage of the proceeding ; and, where such leave is refused, the plaintiff now has no other alternative but to prosecute his claim or, if he fails to do so, to have his action ‘dismissed.’** In this context the term ‘dismissal’ can only mean one thing, namely, that the

p.

68.

Ibid., comment

-69.

Compare

70.

Amendment

542,

n.

d.

63, supra.

published

in Kovets

Hatakanot,

no. 497 of 27.1.1955,

RENEWAL

OF

ACTIONS

75

plaintiff will be precluded from renewing the suit, since leave to discontinue is required precisely in order to preserve his right of renewal. Here again, then, we have an example of dismissal operating as a bar although the merits of the case may not have been considered by the court. 23. Penalty-dismissals under the C.P.R. We are now in a position to appreciate the numerous other instances of dismissal of claims or other proceedings to which a party may be liable under our Civil Procedure Rules, not by reason of the weakness of his case, but by way of penalty for failure to comply with the Rules themselves or for want of prosecution. We shall do so, bearing in mind that on four occasions mentioned above‘: the sanction laid down in the relevant rules is not dismissal, but merely striking out. Here,

cases

are listed the main

then,

penalty-dis-

of such

missals, in the order in which they occur in our Rules. (a) Dismissal for non-compliance with an order for interrogaor inspection,

discovery

tories,

such

non-compliance

be-

ing treated as want of prosecution ;” (b) dismissal for want of prosecution proper, being failure to apply for restoration to the list of a case adjourned generally ;7* (c) dismissal for plaintiff's default of appearance at the hear-

ing ;“*

(d) dismissal for want of prosecution in the event of death, insolvency or marriage of a party; *° (e) dismissal of an originating summons which cannot be properly disposed of in a summary manner; 71.

Vide

72.

C.P.R.,

supra,

r. 161.

§ 10.

73.

CPR,

r.

184,

Vide

supra,

n. 11.

corresponding

to

is not based upon any English rule. 74. C.P.R., r.187(c), corresponding ther party appears, the action should, and, in a Magistrate’s Court, struck vide supra, § 11 and n. 35. r. 229, and M.C\P.R., 75. CPR. deleted in 1945 and replaced by an n. 13), while

76.

C.P.R.,

lish rule,

pp. 348-9.

the latter

was

r. 266 which,

conforms

with

retained

although

ordinary

M.C.P.R.,

This

r. 184,

provision

to M.C.P.R., r.137(c). Where neiin a District Court, be dismissed, out. On this glaring inconsistency, r.179. The former provision was entirely different one (see above, in its original

form.

not based upon

English

practice.

any

See

specific Eng-

Odgers,

op.

cit.,

76

S. GINOSSAR

(f) dismissal of an action for failure to comply with an order to furnish security for costs; and — (g) dismissal of an appeal for failure to furnish security for costs as offered by the appellant and fixed by the Registrar. 78

To what category of dismissal do the seven types above enumerated belong? Are these dismissals final and conclusive, not only in respect of the proceeding actually dismissed, but also in respect of a future proceeding? Or is it still open to the party against whom dismissal is decreed to revive the proceeding, as if it had been merely struck out? In other words, in the seven rules considered, is the term ‘dismissed’ to be construed strictly, or widely? As already suggested, it may appear at first sight that none of the dismissals under discussion is a judgment on the merits. Let us recall the definition of the latter phrase as proposed

in the Restatement

of the Law

of Judgments,”

as follows: “A judgment for the defendant is not on the merits where it is based merely on rules of procedure rather than on rules of substantive law. If the judgment determines that the plaintiff has no cause of action, it is on the merits, but if it determines only that the plaintiff is not entitled to recover in the particular action, it is not on the merits. If the defendant, whether on demurrer, motion, verdict or otherwise, obtains judgment in his favour on 2 ground not involving the substance of the plaintiff’s cause of action, the cause of action is not extinguished thereby. ’ In strict application of the above test, we are inevitably led to the conclusion that none of the penalty-dismissals’ is capable of affecting the plaintiff’s cause of action; and this conSequence is widely accepted both in England® and in the

United States. * 77.

CPR.

in England

|

r.285, and M.C.P.R., (Annual

Practice,

notes

r.212. This to 0.65,

also is common

practice

r.6).

78. C.PJR., r.327. The procedure of appeal is entirely different from that followed in England. 79, At § 49, comment a. Compare the passages of Freeman quoted above in n.59. 80. Halsbury, vol. 15, §§ 380, 389-393. 81. Freeman, op. cit., §§ 725 & sqq., 751 8 sqq., in particul ar $ 753.

RENEWAL

OF ACTIONS

77

In our country, however, the only instance where it is undoubtedly correct is that of dismissal of an originating summons under rule 266, since in such event the parties are expressly referred “to an action in the ordinary course”. Here we have an explicit recognition of the right to renew the action, albeit in another form, and this is a clear sign of the meaning ascribed in that rule, to the term “dismissed’. ‫ל‬‎ But it may seriously be doubted whether the same view is justified in respect of the six other cases of penalty-dismissals.

On the contrary, both the literal construction of the statute and a consideration of its object show that such dismissals are meant to create a bar to further proceedings. 24.

IAiteral construction.

In the first place, the decisive factor is not how these cases of dismissal conform to some abstract test of finality which might usefully be resorted to in doubtful or border-line cases, but

rather,

what

must

have

been

the true

intention

of the

legislature insofar as such intention can be ascertained. Thus we have seen * that both in England and in the United States explicit provisions have been enforced by which judgments, which admittedly would fail to meet the requirements of the test, have nonetheless been statutorily endowed with the character and effect of a judgment on the merits. True, no similar provision has been traced in the legislation applicable in Israel; but having found in the Civil Procedure Rules a number of instances where the rejection of a proceeding was deliberately described as ‘striking out’, in the sense of judgment without prejudice, we are entitled to assume that, when using the alternative term ‘dismissal’, the rule-making authority did have in mind a judgment that would operate ‘with prejudice’ (save, as aforesaid, when the context requires another construction, as in the case of rule 266 ‘:). 82.

Vide C.A. 218/56

(11 P.D. 1180;

30 P.S.C.

33).

Vide supra nn. 63 and 68. , 84. As suggested above (§ 23), it might be advisable out’ of consistency, to substitute the expression ‘striking 83.

‘dismissal’ in r.266. A similar suggestion

might be made

in respect of r.237

for the sake for the word

: dealing with

78

S. GINOSSAR

25.

Object of penalty-dismissals. Moreover, it is relevant to take into account the very object and justification of the dismissal. A factor common to all the cases of dismissal considered is, that it is decreed against a plaintiff (or appellant) as a penalty for failure to comply with some rule of procedure. The obvious question then is: what is the penalty, if the plaintiff, whose action has been so dismissed, may freely restore it whenever he may wish to do so? For example, it is only with very great care and as an ultima ratio that an action will be dismissed for failure to answer interrogatories or to comply with an order for discovery. 5

But

where

a court

has

decided

so to exercise

discretion, would it not be preposterous on plaintiff to start a fresh suit for the same disregard of the dismissal? % The rule giving ers to the court is, in the words of Odgers, 7

its

the part of the object, in ‘utter such wide pow“a highly penal

an application for directions in third party procedure. An amendment to the rule introduced in 1945 gave the court the power to dismiss such an application. It would probably have been more appropriate to provide that in such a case the third party notice should be struck out, so as not to prejudice any further remedy the defendant may be entitled to seek against the third party by a separate proceeding. In England, under O.16A, r.7(3), the third party proceeding may be set aside at any time, and it has been held that failure to apply for or to obtain directions causes end. The effect thereof was

LR. 274, at p. 276 at p. 2014; defendant’s

the third explained

party proceedings to come in Greville v. Hayes [1894]

(quoted by Agranat,

J., in Mo.

179/56,

to an 1 & 2

10 P.D.

1997,

26 P.S.C. 326, at p. 344), where it was held that, where a application for directions is refused by reason that it is

not proper to try his claim main action, this — “of course,

will not

against

deprive

the third party

the defendant

together

of such

right

with

the

of indemnity

by the third party as may exist between them” (sic). 85. Gay v. Hancock (1887) 56 L.T. 726. Cf. Mo. 61/55 1933; 19 P.S.C. 170); Mo. 107/55 (9 P.D. 1518; 20 P.S.C. 31).

(9

P.D.

86. There is a divergence of opinion on that point among American authorities. See Freeman, op. cit., § 753, at p. 1588, text and 1,

87.

Odgers,

op. cit., p. 287.

feat the action even

nie 5

as regards

interrogatories

In Davey

v. Bentinck

or the [1893]

The

effect

of such

dismissal

the other parts of the claim

discovery

1 Q.B.

(Danvillier

185, a former

is to de-

unconnected

v. Myers

action

having

(1883) been

dismissed for failure to comply with an order to give particular s, a subsequent suit was defeated on the alternative grounds that the suit was vexatious, that the court had inherent jurisdiction to stay an abuse

of

process,

making the

and

its order

action,

that

for

it had

used

particulars

its

discretion

subject

under

to terms

as

0.19,

to

rr.6-7,

dismissal

by

of

RENEWAL

OF

ACTIONS

79

provision” and is, therefore, but rarely applied. Would such be the case if the sanction were purely nominal? It should not be inferred that the penalized plaintiff is to be deprived of all remedy and may never ‘have his day in court’. Being a final judgment, the judgment of dismissal is subject to appeal, and the appellate court may in a proper case grant relief to the party in contempt. In other words, the obstacle created by the judgment of dismissal, serious though it may — and should — be, is capable of being eventually removed; but, as long as it exists, it should operate as a bar. This is in perfect harmony with the accepted principles of res judicata. ‫לל‬‎ The same remarks apply mutatis mutandis to a dismissal for failure to furnish security for costs. Here again the court will not lightheartedly order a plaintiff to furnish such security; nor will it, without exercising all due caution, dismiss the

action for failure to comply with such an order.‘ But, once the sanction has been imposed, it would amount to a mere farce if the plaintiff so ‘penalized’ were free to file a new action as if nothing had ever occurred. In this particular instance, *° it will be noted, the plaintiff is offered, in addition to the right of appeal, the remedy of applying for an order

57

In an L.J.

action and

earlier decision, Magnus v. National Bank of Scotland (Ch.) 902, the parties having agreed to the dismissal

in which

to give

the

notice

plaintiff

of trial,

such

had

failed

dismissal

to

reply

was

held

to

(1888) of an

interrogatories

to be no

bar

to a

new action since there had been “no agreement to compromise cause of action”. The general view was further expressed that missal for want of prosecution constitutes no such bar, But this nion, based Treatise on

1780, Israel

on the authority of Lord Redesdale (te, J. the Pleadings in Suits in Court of Chancery,

at p. 238), law

was

is discussed

mere

obitur

post

(§ 27).

vol. 15, § 347;

dictum,

88.

Halsbury,

89.

See notes to 0.65, r.6, in the Annual

Restatement,

90. And not in respect of security obvious reasons. In the first place, an

the

accuracy

§§ 41 and

the disopi-

F. Mitford, original ed.

of which

in

44.

Practice.

for costs appellant

on appeal, for several is in a less favourable

position than a plaintiff, since his claim or defence has already been (at least in part) rejected by the lower court. Therefore, under C.P.R., rr. 325-6, it is the primary duty of every appellant, independently of any order of the court, to file, together with the notice of appeal, a bond for the indemnification of the respondent in the amount of the costs of the appeal. The furnishing of security, in lieu of such bond, is a benefit which an appellant may obtain and he is then expected to be ready to effect the payment or deposit as and when this is ordered by the Registrar. See C.A. 226/46 (46 A.L.R. 577); Mo. D.C.T.A. 777/47 (48-9, Hamishpat 6); Mo. 16/49 (mentioned in n. 37, supra).

₪. GINOSSAR

80

setting aside the dismissal, which order the court is empowered to make on sufficient cause shown. But the very fact that such a remedy has been devised confirms the view that it was necessary in order to overcome the obstacle arising from the judgment of dismissal. 26.

Default as affecting the merits of a case.

The concept of penalty might possibly be extended even further so as to include the remaining cases of dismissal, such as dismissal for default of appearance or for want of prosecution generally.” But although the penalty-motive may not be entirely absent in such cases, it might be stretching it too far to regard it as their sole justification. It might be found on thorough analysis that the main basis for defeating an action in such cases lies rather in the assumption that, by failing to prosecute or to appear at the trial of his claim, a plaintiff demonstrates that he waives his claim, or admits that it is unjustified. In other words, instead of a penalty-dismissal, we may be dealing here with dismissal either by waiver or admission which, by reason of the plaintiff’s inaction at the decisive stage of his suit, is presumed by the rules of procedure, until the contrary is proved. And, insofar as this view is correct, the reasons adduced in the preceding paragraph are no longer adequate to explain the true nature of this group of dismissals, which must consequently be examined and appreciated independently. Nevertheless, there seems to be no reason to exclude these dismissals from the category of dismissals on the merits and to cast them back into the other group. On the contrary, it may be asserted that they properly belong to the former category even more closely than do the penalty-dismissals. Indeed, while the latter are only treated as if they were dismissals on the merits, as the result of a legal fiction or for the sake of penalty, dismissals for default are genuine dismissals on the merits in the technical sense of that ex91.

The

wording

of C.P.R.,

r.161

(as also

that

of 0.31,

r.21, from

which it is derived) is significant : “Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his action dismissed for want of procesution... 0

RENEWAL OF ACTIONS

81

pression. The plaintiff who fails to attend at the trial is, in this respect, in the same position as if he had attended and failed to present all his evidence; and, in either case equally, he may be said to have waived his opportunity of presenting his case to the court. It will be recalled that estoppel by res judicata — at any rate direct estoppel — covers not only the issues actually litigated and determined by the court, but also those which were either expressly or implicitly admitted by the parties; °? and this has been held to include issues which, although not actually raised, might properly been raised. ?: Therefore, if the rationale of a judgment by default is, as suggested, the presumption that the defaulting party admits the claim or defence of his opponent, there is no reason to 92. by Re

That

is why

estoppel by res judicata also arises from

judgment

consent. Bowden v. Beauchamp (1840) 2 Atk. 82; 26 E.R. South American and Mexican Co. Ex parte Bank of England

450;— [1895]

1 Ch. 37 C.A. per Vaughan-Williams, J. (“if they (i.e., the parties agree upon a result... an estoppel is raised as to all the matters in respect of which an estoppel would have been raised by judgment if the case had been fought to the bitter end”), at p. 45; — Cohen v. Jonesco

[1926]

1 K.B.

119

and,

on

appeal,

2 K.B.

1 C.A.;

—

Kirch

v.

Walcott [1929] A.C. 482 P.C.: — Rentit Ltd., v. Duffield [1937] 3 All E.R. 117. Contrast Boileau v. Rutlin (1848) 2 Ex. 665. The majority of American courts are in favour of the view expressed above.

Vide

Freeman,

op.

cit.,

§ 660,

who

criticises

the

tendency

of

some English authorities to confine estoppel to matters actually litigated (§ 661). In the words of the Texas Court of Civil Appeal, “the conclusiveness of the judgment does not depend upon the violence of the controversy” (quoted ibid., at p. 1391, n. 19). 93. phries

Henderson v. Henderson (1843) 3 Hare 114, 67 v. Humpries [1910] 1 K.B. 796, at pp. 800 and

E.R. 313; Hum802, and 2 K.B.

531, at p. 534; — Cooke v. Rickman [1911] 2 K.B. 1125, at p. 1129: — Hoystead & Ors. v. Commissioner of Taxation [1925] A.C. 155 P.C., at pp. 165-6, where a contrary authority in Howlett v. Tarte (1861) 10 C.B.N.S.

813,

142

E.R.

673, was

discussed

and

explained

by

the

abolished) rule against ‘double pleading’ and the consequent for a defendant to restrict his defence to one single plea. Israel

precedents

also

favour

the

view

that

the

principle

(since

necessity of

res

judicata applies not only to the issues that were actually litigated and determined, but even to those which might have been raised in the course of the previous proceedings. This was expressly decided in C.D.C.Jm. 204/52 (10 P.D.C. 36, at .‫כ‬‎ 41) and, incidentally, in C.D.C.T.A, 216/48

(6

P.D.C.

380,

vide

§ 38-39:

this

judgment

was

appeal in C.As. 143/51 and 55/52, 10 E. 1804, 26 P.S.C. that case the question in dispute was whether a judgment res judicata as between defendants to a former suit and that this depends mainly on the existence of a “conflict between them. Such conflict will normally exist in every tween plaintiff and defendant).

reversed

on

219, but in operated as it was held of interest” action be-

82

₪. GINOSSAR

distinguish in this respect between a judgment by default and a judgment by consent; and, in fact, these are commonly linked together under one head on the assumption that they are both governed by the same principles. In Irish Land Commission v. Ryan & ors. * the Court of

Appeal, while admitting that a judgment binds the parties for

all time in respect of all issues raised by them and determined

judicially

or by consent,

the case of a judgment, “nothing

has been

to extend

refused

estoppel

such

to

where —

litigated,

and

there

has been

no

agree-

or allowing

ment, unless omitting to appear is litigation, judgment to go by default is agreement.” °° But, in a later Irish case, Cox v. Dublin City Distillery,** this opinion was discussed and explained mainly by the then prevailing rules of procedure, which allowed judgment to issue against a defaulting defendant without a statement of claim having ever been entered by the plaintiff, so that there were actually no allegations which could be either traversed or admitted. On the contrary, under the present Rules, or generally when a statement of claim has been 11160," judgment by default is held to be based on the presumption that the defendant has admitted the entire claim. “It appears to me a startling proposition that a plaintiff who has delivered a statement of claim setting forth his cause of action is in a worse position when the defendant fails to file a defence than he would be if a mere bogus defence were put on the file of the Court which the defendant could not subsequently substantiate. The defendant who does not file a defence admits the averments in the statement of claim...”%* This dictum, referring to a default of pleading by a defend94. 95. 96.

[1900] 2 LR. 565. : Ibid., at p. 574, per Fitzgibbon, [1917] 1 LR. 203 C.A.

97.

Compare

98,

Cox

Ignatus

n.17,

v. Dublin

L.J.

supra.

City Distillery

(quoted

above),

at p. 223, per

Sir

J. O’Brien, C.

It will be noted that where a third party fails to enter an appearance or to deliver a pleading, he is expressly “deemed to admit’ the validity of any judgment that may be given against the defendant, and his own liability to contribute or indemnify (O.16A, r.5, and — in Israel -— C.P.R., r.234, and M.C.P.R., 1.184).

RENEWAL OF ACTIONS

83

ant, applies with equal force to a default of appearance by a plaintiff,

and,

in the

latter

case,

a

judgment

of dismissal

will also be, for all purposes, a judgment on the merits. No wonder, therefore, that even in England plaintiffs whose suit has been dismissed by reason of their default to appear at the trial were held to be estopped from renewing their action. °° In Israel, however, where this solution is even more

justified in view of the existence of a special mode

of striking

out an action, a recent decision of the Supreme Court has cast some doubt on that particular point. An action having been filed in the District Court of Haifa for an order for possession of certain plots of land expropriated for public purposes, the Attorney General, on whose behalf the proceedings had been initiated, failed to appear at the hearing and the application was accordingly dismissed. Another application was then presented, to which the respondent demurred on the ground of res judicata. The objection was, however, overruled, some substantial points of difference having been disclosed between the two applications. The respondent thereupon applied to the Supreme Court for leave to appeal, but this was unanimously rejected. While the opinion of the majority (Olshan, C.J., and Landau, J., concurrente) was hardly more than a confirmation of the grounds relied upon by the lower court, *°* Silberg, J., based his minority judgment upon the additional ground that there could be no res judicata at all since the judgment of dismissal contained no findings, not even the finding that the plaintiff had failed to prove his claim. 1°? With all due respect, it is submitted that this latter view 18 based upon a misapprehension. Independently of the English 99.

Ker

v. Williams

(1885)

29 ₪0.1,

681;—dictum

of Lord Esher,

MR.

in Armour v. Bate [1891] 2 Q.B. 233, at p. 235. In the former case, no pleadings having been delivered, it was held that 0.25, r.4, did not apply, but the action was nevertheless stayed as frivolous and vexatious by virtue of the inherent jurisdiction of the court. Cf. n.53, supra. See also the notes on “Developments in the Law of Res 111010808" in 65 Harvard Law Review (1951-2), at p. 839. 100. Mo. 255/56 (11 P.D. 12; 26 P.S.C. 382), 101. For the sake of accuracy it should be added that, in the opinion of the majority, the expropriation itself still subsisted notwithstanding the dismissal of the application, so that the Attorney-General

remained entitled to demand an order for possession. 102. This was obviously an elaboration of the principle by him in C.A. 126/51 (quoted above, n.54).

laid

down

8. GINOSSAR

84

authorities, °* no account was taken of any of the arguments suggested above, and in particular of the use of the term ‘dismissed’ both in the initial judgment of the District Court and in the provision of rule 187 under which that judgment had been delivered. The opinion here discussed might have been justified if the matter had still been governed by the Ottoman Code of Civil Procedure’ or by the Judgment by Default providing, as they did, in the event of plainRules of 1928, ce, for a mere striking out of the acappearan tiff’s default of tion with liberty to institute a fresh action. But when such striking out was replaced in 1938 by the dismissal of the action, it must be assumed that the change of name was intended to express a change of substance, and no explanation can be offered other than one based upon the ordinary and distinctive meaning of either term. This rule of construction would perhaps not be applicable to this problem in England or in other Anglo-Saxon countries, where neither the Ottoman practice nor the expression ‘striking out’ have ever been part of the legal system; but the point has considerable, if not decisive, weight in Israel. A further reason for denying a defaulting plaintiff the right to start his action afresh resides in the circumstances that, in the meantime, his right of discontinuance has been curtailed to the point that it can no longer be exercised unless by leave of the court.1% Were the opinion of Silberg, J., therefore, to prevail, any plaintiff would be offered the means of evading 103. The authority of Armour v. Bate (supra) was disregarded on three grounds, viz. (a) that the point argued in that precedent was not the point of res judicata; (b) that the dictum in that case was ambiguous; and (c) that it was, in any event, merely obiter. Another authority to which reference was made was New Brunswick Railway Co.

v.

and

British

Trust

French

1 . 747; [1939] AC. 104. Vide supra, § 8. 105. Vide supra, § 9. This ment

given

in

L.C.Jm.

might perhaps

36/44

(46

S.D.C.

serve 484),

was instituted after two former suits had the plaintiff’s own request, and the second the

authority

(Ch.) but

of Magnus

902, the court it at once

v. National

held that

proceeded

to

Ltd.

Corporation,

there

dismiss

Bank

was the

[1938]

4

ER.

All

to justify the judg-

where

a

third

action

been ‘struck out’, one at owing to his default. On of Scotland

no

estoppel

third

action

vexatious. It should be noted that the English of dismissal for want of prosecution by consent 106. Supra, $ 22.

(1888),

by res as

57

L.T.

judicata,

frivolous

and

case quoted was one (see n. 87, supra).

RENEWAL OF ACTIONS

85

the restriction imposed upon him by the amend ment to rule 185. Having failed to obtain leave to discontinue — nay, without even troubling to apply for such leave — all the plaint iff

would have to do would be, to stay away from the hearing of

his action, and the dismissal of the action, containing no ‘finding’ whatever, would leave him at liberty to institute a fresh action whenever he might choose to do so. In other words, he would have the benefit of discontinuance without having to qualify for it. The rule-making authority can hardly be supposed to have intended such an absurdity. It might be objected, on the ground of fairness or convenience, that the contrary solution is excessively harsh upon the plaintiff, whose absence from the hearing may have been excusable for some good cause and should not be penalized by the death sentence of an estoppel. But, with all due sympathy for such a plaintiff, who may be entirely blameless or whose omission may be purely technical, it would be wrong to depict his position as hopeless. On the contrary, he has at his disposal an appropriate remedy by which he can remove the obstacle and eliminate the estoppel barring his path. The judgment of dismissal, being a judgment ex parte, may be set aside on application of the defaulter; and while in England such application must be made within six days after the trial, the period fixed therefor in Israel is four months from the service of the judgment on the defaulting party.’ Here, it is submitted, lies the plaintiff’s proper remedy, and — as in the cases of penalty-dismissals already discussed 15 — there is no valid reason

to offer him, in addition,

the unwarranted

liberty to disregard the judgment given against him. 27.

Dismissal for want of prosecution.

As regards failure of an action for want of prosecution, it is difficult to decide which is the dominant factor. Is this another case of sanction-penalty, similar to the other cases of non-compliance already discussed, or is it rather based on a presumption of consent-waiver-admission, as in the foregoing case of default ? It may well be that both these elements con107. Compare: O.36, r. 33, of M.C.P.R., r. 163. . 108. Vide supra, § 25.

the

English

R.S.C.;

CP.R.,

r. 213;

S. GINOSSAR

86

tribute to the determination of the action and that their respective shares cannot be assessed with any degree of accuracy. But there is probably no need to do so, since either factor leads to the same result. This can easily be verified in the remaining two provisions of the Civil Procedure Rules, 1938, which have not yet been discussed. One of them concerns the abatement of an action as the result of the death, insolvency, or marriage of a party, and the dismissal for want of prosecution by the person entitled to proceed on behalf of the estate or other successor in interest. In such event no fresh action may be brought on the same cause of action, unless and until the court gives leave to revive the action or to set aside the dismissal. °° The other provision to be accounted for does not appear to have been borrowed from England and is therefore quoted here in full. 184, Where the hearing, of an action “Procedure where no has been adjourned generally, rape aepak pig Court may, if no application the generally. journed made within six months of is to restore the last adjournment, give notice to the parties to show cause why the action should not be dismissed. If cause be not shown to the satisfaction of the Court, the action shall be dismissed.”1”° This rule has, admittedly, a somewhat technical character. It is designed to prevent actions from remaining dormant in the Registry of the Court for an excessive period of time, and to achieve that purpose the parties are exposed to the risk that the action may be dismissed — dismissed, and not 109. This was expressly laid down in r.229 as originally enacted. The provision was deleted when the whole Part XIX was amended in 1945;

but

the

in

corresponding

r.179

proceeding

judgment

the

still

M.C.P.R.

obtains,

and

there is no reason to assume that it would no longer be applied in the superior courts. Indeed, the present text of r.229 reads that “in default

of

such

dant ...”, which merits

(Armour

is the normal v. Bate

[1891]

may

be

entered

form of a judgment 2 Q.B.

for

the

of dismissal

defend-

on the

233).

110. M.C.P.R., r. 134, is couched in identical this respect, r.361A of the C.P.R. (n. 43, supra).

terms.

Compare,

in

RENEWAL

OF

ACTIONS

87

struck out, as was emphasized by the Supreme Court in C.A. 137/45, ‫ווג‬‎ There is no denying that the English authorities generally support the opposite view, namely,

that a dismissal

for want

of prosecution constitutes no bar to another suit. But they should be referred to with caution, since the distinction between dismissal and striking out, adopted in Israel, is practically unknown in England. The point is not whether dismissal for want of prosecution is intrinsically a dismissal on the merits, — no one would venture to make such an assertion — but, rather, whether it is treated as such by statute. this

States,

of the United

Courts

Federal

In the

is clearly

so in view of the explicit wording of Rule 41; and there is abundant material to show a similar intention on the part of the rule-making authority of Palestine who, again, chose the expression ‘dismissal’, and not ‘striking out’, to describe the consequence of this form of want of prosecution. 1™ 28.

Effect of demurrer:

striking out or dismissal?

We have purposely deferred until the end of our survey an appreciation of the rejection of a proceeding on a demurrer, and its influence on the cause of action, for the question is of such complexity that a uniform solution appropriate equally to all types of demurrer is utterly inconceivable. Each type ought to be considered separately in the light of its own particular features. For instance, a suit may fail because it was not brought 111.

S.D.C.

Cited

above,

38), where

$ 12

it was

and

held

n.

36.

Vide

that formal

contra

L.C.Jm.

12/45

(47

of pro-.

for want

dismissal

secution creates no estoppel. But this was a case of dismissal not under the rule here considered, but under the (since revoked) rule 141,

by which

acourt

(vide supra, judicata was

was émpowered

either to dismiss

or to strike

§ 10). An additional ground for rejecting the non-identity of the parties (cf. supra,

112. Brandwyn v. Ord (1738) 1 Atk, Nixon (1831), You. 359, 159 E.R. 1032; — Brick Co. (1879) 12 Ch.D. 681; — Magnus (1888) 57 L.J. (Ch.) 902 (vide supra, nn. In Gilbert v. Gosport and Alverstoke 2 Ch. 587, an order dismissing an action

out a case

the plea § 4).

of

res

571, 26 E.R. 359; — Jones v. In re Orrell Colliery and Fire v. National Bank of Scotland 87 and 105). Urban District Council [1916] for want of prosecution under

0.36, r. 12 (failure to serve notice of trial), was held to be a ‘judgment’ for

the

113.

purpose

That

he

of taxation

might

have

Registrars Ordinance, 1936; carded (vide supra, §§ 9-10).

of costs.

chosen but

this

otherwise

was

possibility

anticipated

was

in the

apparently

dis-

. G GINOSSAR 5. 8

88

tion is prematurity, at the proper time. If the ground of rejec existence at the in that the cause of action was not yet in btedly leave commencement of the action, this should undou the time of the plaintiff free to renew the proceeding when ground for the hand, other maturity arrives.“ If, on the tuted too insti was n rejection is limitation, in that the actio and the t late, no lapse of time can possibly cure the defec any subsedismissal should operate as an additional bar to quent claim. *” Similarly, where an action fails because no cause of action ines the is disclosed, “a judgment is on the merits if it determ merits the merits of the controversy as distinguished from of the pleadings.” **° ure It is therefore quite opportune that the Civil Proced disthe either for ground a as er Rules have treated demurr 739, 745. 114. Restatement, $ 50, comment b; Freeman, op. cit., §§§ owing to A similar view should prevail where the first action fails non-performance of a condition precedent, But in C.A. 234/40 (7 PLR, bill 603; 40 S.C.J. 439. 9 Ct.L.R. 33), an original suit for payment of a of exchange having failed owing to some defect in the endorsement, so that the court had not been satisfied that the plaintiffs were the holders of the bill, a correct endorsement was procured and another action brought, but again dismissed, this time on the ground of res was judicata. This decision, which does not seem entirely satisfactory,

distinguished in C.A.D.C.Jm.12/42 (reported in Gorali, Rent Restriction, 2nd ed., at p. 163: initial action for eviction dismissed “in its present form”, on account of the plaintiff's failure to make an averment in the statement of claim or to effect a payment into court which the magistrate deemed necessary, — no bar to renewed action filed after compliance with these requirements, since “the cause of action was really then not determined on the merits’), But in Mo.D.C.T.A. 892/54 (10, P.D.C. (Summaries) 170) it was held that where an action is dismissed for failure to serve prior notarial notice on the defendant as prescribed by the (unrepealed) art. 106 of the Ottoman Code of Civil Procedure, no fresh suit may be brought even though the required notice may in the meantime have been given. Cf. also

C.A.

181/58

(8 P.D.

1461;

17 P.S.C.

336),

where

the

dismis-

sal of a previous action for ejectment brought during the period of contractual

tenancy

was

after the expiration 115. But quaere amendment of the (11 P.D. 1336; 30

held

to be

no

bar

to

a

second

action

instituted

of that period. whether an extension of the period of limitation by statute could have such an effect? In C.A. 316/56 P.S.C. 204) the point was decided in the negative,

unanimously, — on the ground of the wording of the amending statute, which only provided for the prolongation of such periods of limitation has had not yet lapsed on the coming into force of the amendment; and by a majority per Sussman, J., Silberg, J. consentiente, but Landau, J., dissentiente) — on the ground that the decision given in the earlier suit was one of ‘dismissal’ under r. 21A by reason of limitation and was therefore res judicata. 116.

Freeman,

op. cit.

§ 740. See

also Restatement,

§ 50, comment

c.

RENEWAL OF ACTIONS

89

missal or the striking out of an action, and it is only the strange manner in which the Rules require these two different modes of determination to be applied that is open to criticism. Two separate provisions, rules 21 and 21A, ‘ deal with

the matter, the former covering the field of striking out, and the latter that of dismissal. A complete ™® list of the various grounds mentioned in those two rules would read as follows: (1) the statement of claim does not disclose a cause of action; (2) the action is shown by the statement of claim to be frivolous or vexatious;

(3) res judicata; (4) want of jurisdiction; (5) any other ground on which it may appear that the suit ought to be dismissed in limine. Under the Rules, the first two grounds may lead to the striking out of the statement of claim, while the last three are

grounds

for dismissal

of the action.

There

is, however,

little to warrant a division on these lines. The only ground that has been correctly dealt with is the third one. Indeed, once an action has been dismissed by reabound son of res judicata, another identical action is 0 one. of to be dismissed by reason of two res judicatae instead But, as already observed, non-disclosure of a cause of action may consist not merely in the omission of an essential allegation in the statement of claim, but in the non-existence of a cause of action altogether,

in which case a dismissal

of

the action on the merits would be imperative. And the right of “presenting a fresh statement of claim in respect of the same cause of action”, which is expressly reserved by rule 23 to a plaintiff whose statement of claim has been struck out under rule 21, is even more ludicrous **

x

117, 1%. 118. 119.

failure

Literally, a striking out of the statement of claim.

Rule 21A was inserted in 1945. C.P.R., r.21, still mentions two to pay

adequate

Court

fees,

but

additional these

may

ground have

Vide supra,

arising been

from

impliedly

(supra, n. 32). superseded by the new Courts (Fees) Rules, 5717-1957 out’ is clearly Insofar as they still apply, the sanction of ‘striking sufficient. the right of 120. In the case of non-disclosure of a cause of action, which it is desrenewal may be called absurd only in the terms in

90

S. GINOSSAR

where the striking out was motivated by the frivolous or vexatious character of the action! On the other hand, it goes without saying that where a suit fails for want of jurisdiction, this should not prevent the

institution

action

of a new

in the

competent

forum,**

so that in this case striking out would be more appropriate than dismissal. 1°? Finally, the last group of grounds, not otherwise specified, — and which, incidentally, might also include the two grounds governed by rule 21 — may include objections in point of law of a purely transient nature, such as prematurity of the claim, temporary incapacity to sue or immunity from being sued. In these cases, dismissal, as understood in Israel, would obviously be unwarranted. The legislature would therefore be well advised to combine rules 21 and 21A into one single provision where, after enumerating or describing the grounds which may be raised by way

of preliminary

objection,

the

court

would

be given

the power, at its discretion, either to strike out the action or to dismiss it entirely. The option exercised by the court would be binding upon the parties and subject to revision by the court of appeal. This would hardly be an innovation, but would rather serve to validate that which has been the constant practice of the courts where the exact border-line separating the realm of the two existing rules has frequently been obliterated. 775 — cribed. Indeed, once it has been found that there is no cause of action, how can a plaintiff possibly sue in respect of "616 same cause of action”? The text of the Restatement on this point is hardly preferable (“Even though the judgment for the defendant is based upon the failure of the plaintiff to state in his complaint facts sufficient to constitute a cause of action, the plaintiff is not necessarily precluded thereby from maintaining an action on his original cause of action” (§ 50, comment 0.((. But in either text the intention, clumsily expressed, is quite clear and reasonable. 121. Restatement, § 49, comment a; Freeman, op. cit., §§ 732-3.

122.

Before

jurisdiction was

the introduction raised

under

of r. 21A

in 1945,

r.21, as failure

the plea of want

to disclose a cause

of

of act-

ion in the particular court where "the action had been brought. See our notes in Annotated Laws of Palestine, vol. 5, at pp. 228-9. 123. See ibid., at pp. 221-2. Adde: C.A. 184/56 (11 ₪. 635; 28 P.S.C 278); — Mo, 141/56 (10 P.D. 1456; 25 P.S.C. 191); — CA. asi (11 P.D. 1170; 30 P.S.C. 3),

RENEWAL OF ACTIONS

IV. 29.

91

CONCLUSION

Necessity for a discriminating

approach.

The foregoing survey demonstrates that, while the failure of an earlier suit does not always operate as a bar to a new action,

there are

entertained.

cases

where

such new

action would

not be

And yet, the fixing of the exact border-line

be-

tween those two groups is no easy task. 30.

Appreciation of the Anglo-Saxon test.

In the Anglo-Saxon countries this depends mainly upon the question whether or not the decision was made on the merits of the case. But the test itself is far from satisfactory. In the first place, the meaning

of the phrase

‘on the me-

rits’ is nebulous and elusive. Taken in its narrowest sense, there will hardly be a case to which it may apply, since there can never be absolute certainty that the merits have been considered with sufficient thoroughness and that some piece of evidence or other relevant element has not escaped the attention of the court or been withheld from it by the default of a party to the litigation. On the other hand, if the test is widened so as to include not only actual consideration of the merits, but also “legally sufficient opportunity” to present them to the court, there is no limit to what may be deemed sufficient, and the test will lose its contact with the reality of things, and tend to become a mere legal fiction. Such a fiction may be created by explicit legislation which (as is done by Rule 41 of the Federal Rules of Civil Procedure) may prescribe that some specific rejection of a proceeding shall be deemed equivalent to an adjudication upon the merits. The solution of the problem of renewal of actions is thereby severed from the genuine merits and is made wholly dependent upon the policy adopted by the legislature. Then, again, such policy often consists in relying upon the discretion of the court, so that a judge, when dismissing a suit, may ultimately decide whether the dismissal is to be with or without prejudice. In fact, even in the absence of express statutory provision to that effect, such power will be exercised by a court when the occasion arises and, in whichever way it may have been exercised, the decision will

92

₪.

GINOSSAR

be taken to determine whether or not the judgment is conclusive and operative as a bar to a renewed action. In short, in addition to its uncertainty —

of that very defect — the merits’

31.

if not by reason

the usual test ‘on the merits/not

is artificial,

Advantages of the striking out.

fictitious

and

distinction

on

arbitrary.

between,

dismissal

and

The alternative solution that has emerged in Israel as a consequence of what may have been nothing but an accident of legislation is too closely linked with the traditional test described,

to be immune

from the same

defect, and

it is not

suggested that it is capable of providing a panacea for all of them at once. But it undoubtedly points the way to a sounder approach and to more acceptable results. In the first place, it is both logical and convenient

not to

use one and the same name with reference to the various categories of failure of a proceeding. In addition to the modes known as discontinuance, abatement and stay, all of which have their own

specific scope, there is still room

for at least

two different types of rejection by order of the court, one operating as a bar to renewal while the other does not so operate. The antiquated Scottish term ‘assoilzie’ and the expression ‘dismissal’ have, in our country, been replaced respectively by ‘dismissal’ and ‘striking out’ and, although this shifting may be deplored, there is no putting back the clock and the fait accompli, sanctioned by constant usage, has become irrevocably binding. Moreover, it has been adopted in Israel by statute, whilst a corresponding lacuna in the field of criminal procedure has been filled by the addition of the discharge of the accused as an alternative to his acquittal. The change in terminology has caused a no less significant change in the method of implementation, since the decisive factor lies in the choice of words by the legislature or by the Judge. By prescribing whether, in any particular set of circumstances, a proceeding should be dismissed rather than be struck out, or the reverse, it is the legislature which decides in advance whether in such circumstances a fresh suit should

RENEWAL OF ACTIONS

93

be either precluded or maintainable. In making its choice the legislature will be guided by all the relevant factors and take into account not only the extent to which the merits of the case actually have,

or may

fairly be deemed

to have,

been considered, but also the seriousness of plaintiff’s default, negligence,

omission

or malice,

and the gravity

of the sanc-

tion appropriate to each type of default. If it values consistency, it will seek to harmonize

such choice with the general

policy followed in the matter of discontinuance and, as from that stage of the proceedings where discontinuance is no longer possible without leave of the court, it will be compelled to prefer dismissal to striking out. And wherever it prescribes that a proceeding is to be dismissed, and not simply struck out, it may devise some special remedy with a view to assisting the penalized plaintiff to overcome the effects of the dismissal and retrieve his forfeited right to proceed. There will necessarily be cases where the choice between dismissal and striking out (as between acquittal and discharge) cannot properly be anticipated by the legislature. A topical instance is that of demurrer. In such cases all the legislature can do is, to delegate the power of option to the court. The statute will then provide that the court may either dismiss the proceeding or strike it out, and it will then be the

judge’s of the But ing to over,

responsibility to exercise his discretion in the light circumstances of the case. it is only in exceptional cases that the option belongthe legislature will be so delegated to the court. Moreits exercise

will

not

have

to be

inferred

from

some

positive statement (‘with prejudice’ or ‘without prejudice’) inserted into the judgment or — more often than not — from the absence of such statement, but will always be easily detected in the very words (‘dismissed’ or ‘struck out’) chosen by the court. And wherever court a wrongly dismisses a proceeding which should have been struck out, or vice-versa, the party affected will be able to obtain redress from the appellate court, which may then amend the judgment by varying the mode of determination authoritatively laid down by the stathe tute or by reviewing the exercise of the discretion by it lower court, where there was such discretion and where was wrongly exercised.

94

₪. GINOSSAR

32. Summing-up. To sum up, the distinction between the various kinds of rejection of a proceeding is no idle logomachy. Legal terms are the tools of legal thought and reasoning. Vague terminology is conducive to muddled thinking, and the safest — if not the only — way to avoid this peril is to define precisely the meaning of all terms and to use them consistently in their proper sense. This is all the more

essential with regard

to concepts of constant occurrence. Such is the very condition of progress.

THE

LEGAL

VALIDITY

CONCERNING CLAUSULA

OF THE

UNDERTAKINGS

MINORITIES REBUS

AND

THE

SIC STANTIBUS

By NATHAN FEINBERG The “Study of the legal validity of the undertakings concerning minorities”,' prepared by the United Nations Secretariat and published in April 1950, has so far received little attention, although it is a comprehensive document of great interest. While a few authors’? have indeed dealt with this document they have done so mainly in connexion with the question of the validity of the regime of international protection of minorities, and not as an opinion based mainly on +6 6 rebus sic stantibus,* which is one of the most controversial doctrines in international law. The Study was prepared at the request of the Economic and Social Council, and it was the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, at its first session of November-December 1947, that had first

realized the necessity of clarifying the question whether the

1.

U.N.Doc.

7 April 1950. der des Generalsekretadrs Gutachten Das Carl Bilfinger, Nationen über die Fortgeltung der nach dem ersten Welt-

2. See Vereinten

E/CN.4/367,

Zeitschrift für Minderheitenschuteverpflichtungen, krieg eingegangenen 3, 15, Nr. Band und 7612010020 Recht ôffentliches ausländisches

Heidelberg, 1954, pp. 521-532; T. H. Bagley, General Principles and (thesis subProblems in the international Protection of Minorities mitted to the University of Geneva), Geneva, 1950, pp. 202-206. The

article From Protection of Minorities to Promotion of Human Rights by Dr. Jacob Robinson (in “The Jewish Yearbook of International Law’, Internatioon one the and 115-151) pp. 1949, Jerusalem, 1948,

nal Law — League of Nations — The Present Force of the Minorities Treaties by Alan Renouf (in “The Canadian Bar Review”, 1950, pp. 804813) were written before the publication of the Secretariat's Study. The article Validité des traités minoritaires conclus aprés la premiére guerre mondiale by Aristos Frydas, although published in 1952 (in “Revue

Hellénique

mention 3.

de

of the

Hereafter

Droit

International”,

Athénes,

1952,

pp.

60-63),

makes

no

Study. clausula

rebus

sic stantibus

will be abbeviated

to c.r.s.s.

6

N. FEINBERG

minority treaties and declarations were still in force.‘ The SubCommission itself did not attempt to discuss the question but decided to bring the matter to the attention of the Commission on Human Rights, confining itself to expressing the view that “there is here involved a juridical situation which, owing to its implications and possible consequences, should, in any event, be elucidated, possibly through a request for an advisory opinion addressed by the Economic and Social Council to the International Court of 1080106" .* The Commission on Human Rights, accepting the suggestion

of the Sub-Commission,

recommended

to the

Economic

and Social Council to apply to the International Court of Justice for such an advisory opinion.’ However, in the Social Committee of the Economic and Social Council the view was advanced by the British member, and shared by other members, that it would be “premature and cumbersome to refer the matter to the International Court of Justice without first having a legal analysis of all the factors involved”. It seemed more advisable to them to ask the Secretary-General

to study

the question

and,

on

his findings,

to

determine whether or not it was necessary to obtain the opinion of the Court.’ Accordingly, the Economic and Social Council decided, at the beginning of March 1948, in its resolution 116 C (VI), to request the Secretary-General to. “study the question whether and to what extent the treaties and declarations relating to international obligations undertaken to combat discrimination and to protect minorities, the texts of which are contained in the League of Nations document CL.110.1927.1 Annex, should be regarded as 4. The Belgian representative, M. Nissot, pointed out at the sixteenth meeting of the Sub-Commission of December 4, 1947, that the “competent organs of the United Nations cannot pursue their activity in this domain [of combating discrimination and protecting minorities] without concerning themselves as to what remains at this time of the international rights and obligations resulting from these declarations and treaties [concerning minorities]”. U.N. Doc, E/CN.4/52, 6 December 1947, p. 15. 5. Ibid. 6. U.N. Doc, E/600, 17 December 1947, pp. 10-11. 7. U.N, Doc. E/AC.7/SR.34, 8 December 1947, pp. 2-4. 8. After it appeared that there existed a League of Nations’ later and up-to-date document containing the list of undertakings (List of

Conventions

with

indication

of the relevant

Articles

conferring

Powers

MINORITIES

being still in force,

AND

THE

CLAUSULA

97

at least in so far as they would

entail

between contracting States rights and obligations the existence of which would be independent of their guarantee by the League of Nations; and to report on the results of this study to a later session of the Commissi on on Human Rights with recommendations, if required, for any further action to elucidate this question”. It took the United Nations Secretariat two years to prepare the study. Already on the agenda of the fifth session of the Commission on Human Rights, held May-J une 1949, an item appeared entitled “Report by the SecretaryGeneral on the question of the continuing validity of the minori ties treaties and declarations”, but since the study was not yet ready the Commission decided to postpone consideratio n of the item. The Study was submitted to the sixth session of the Com-

mission,

held March-May

1950,

but the Commission

thought

that the question required a great deal of examination and postponed consideration thereof until the seventh session." Neither then, however, nor at any of the succeeding sessions has the subject been discussed. The Secretariat’s study was pending on the agenda of the Human Rights Commission for five consecutive years, and it may be noted that waning importance

appears

to have

been

attached

to the matter

as time

went on. Whereas in 1950 the item occupied the 11th place on the agenda, it receded to the 13th in 1951, to the 17th in 1952, to the 19th in 1953 and to the 20th in 1954. At its eleventh

session, held in April 1955, after the draft Covenant

on civil and political rights and the draft Covenant on economic, social and cultural rights had been completed, the on the Organs latter

of the League

document

was

taken

of Nations, Geneva, 1945, pp. 108-126), the as

a

basis

for

the

Study.

See

U.N.Doc.

E/ON.4/367, 7 April 1950, pp. 2-3. 9. UN. Doc. E/777, 12 March 1948, p. 18. 10. U.N, Doc, E/1371, 23 June 1949, pp. 5, 13. 11.

U.N.

appointed

Doc.

by

0/1681,

the

Human

29 May

Rights

1950,

p. 13. In the

Commission

ad hoc

with

the that was

which

charged

Committee

examination of the Study, the general feeling of the members was the document required careful consideration by governments. “It

pointed out, also, that the information

and

Governments

would

be in-

vited to furnish the Secretary-General on the legal status of minorities... might have some bearing on this problem”. U.N.Doc. E/CN. 4/450,

25 April 1950, p. 2.

N. FEINBERG

98

Commission felt that it had reached a “turning-point in its history” and that the time had come to take a decision in regard to its future programme of work which ‘would determine whether the Commission would gain a new lease of ylife”’.4 Neither in the “Memorandum on the Human Rights Programme”, submitted to the Commission, February 1, 1955, by the Secretary-General, nor in the protracted discussions held in the Commission over nine consecutive meetings, had any proposal been made to include the Study in the list of priority items for the work of the Commission. Indeed, in Resolution VI adopted by the Commission on the “Programme of work for future sessions” the Study was entirely ignored. Paragraph B of the Resolution, dealing with “Prevention of Discrimination and Protection of Minorities”, mentions “consideration of the reports and recommendations of the Sub-Commission... and of any proposals or recommendations which may in future be transmitted to the SubCommission and any matter connected with the subjects covered by this heading”.# But it should be remembered that the Sub-Commission could not discuss the Study without being required to do so either by the Human Rights Commission or by the Economic and Social Council, because by virtue of the resolution adopted by the Commission, at its sixth session of March-May 1950, the Study was transmitted to the Sub-Commission for “information” only. :° From the very proposal of the Secretary-General, in his above-mentioned memorandum, that the Commission “dispose of items [on its agenda] which are not likely to be fruitful... [and] defer items which are not urgent...”,% it would appear that the Study belonged to the items “which are not likely to be fruitful’ or at best ‘which are not urgent”.

There

is, of course,

nothing

to prevent

the Human

Rights Commission from deciding to renew — or rather to begin — consideration of the Study, but there is no reason 12, 13. 14.

U.N.Doc. E/2731 and Corr. 1, June 1955, p. 13. U.N.Doc. E/CN.4/710, 1 February 1955. U.N.Doc. E/2731 and Corr, 1, June 1955, p. 14.

15. U.N.Doc. £/1681, 16.

U.NDoc.

29 May

E/CN.4/710,

1950, p. 14.

1 February

1955, p. 1.

MINORITIES AND THE CLAUSULA

99

to assume that there are any prospects for a change of attitude on the part of the Commission, so that in fact the Study may be taken to have been shelved. II. The Secretariat approached the task entrusted to it by the Economic and Social Council by limiting the Study to the strictly legal aspects of the question, and left out of its scope any appraisal of the past and present political value of the minorities system. The result of its research and investigation was a highly technical and legally complicated document. In the first title of Part I of the Study, its authors tried to ascertain whether certain events after the Second World War constituted normal causes for the extinction of the international obligations assumed in the field of the protection of minorities. Among the circumstances which may have constituted ordinary causes

of extinction,

the Secretariat first considered

the effects of war and reached the conclusion that war in itself did not entail the extinction of the above obligations. For this, two

reasons

were

advanced:

first, that the obliga-

tions arose either out of multilateral agreements (with two exceptions) to which belligerent and neutral countries were parties, or out of declarations made before the Council of the League

of Nations,

which

“represented

an

international

community”; and, secondly, that the “international undertakings relating to minorities may be regarded as undertakings of general interest”, since they were entered into “in the interest of good understanding, international order

and peace’’. 1” The dissolution of the League of Nations was given as a second possible cause of the automatic extinction of the instruments relating to minorities. In the Study a distinction is drawn between the States bound by the peace treaties of (Austria, Bulgaria, Hungary and Turkey) and 1919-1923 by the minorities

dom 17.

treaties

of Serbs, Croats U.N.Doc.

(Czechoslovakia,

and Slovenes,

E/CN.4/367,

7 April

1950,

Greece,

Poland pp. 7-9.

the King-

and Roumania),

|

100

9.

made

which

the States

and

hand,

on the one

FEINBERG

declarations

before the Council of the League of Nations (Albania, Estonia, Latvia, Lithuania and Iraq), on the other. As to the

minorities treaties, while the dissolution of the League did indeed lead to the lapse of the League guarantee * and thus may have weakened the practical value of the obligations, it did not affect the obligations themselves. *° As

that

was

reached

conclusion

the

declarations,

for the

they, too, remained valid. By virtue of the Assembly’s resolu-

tion 24)1( of 1946, the United Nations may, as “the present embodiment

take an express

community,

of the international

decision to succeed the League” and may assume the functions and powers which at the time were entrusted to that body in the domain of minorities protection. So long as 18.

Almost

all the

international

provided for judicial supervision

Justice, League

in addition of Nations.

pulsory

jurisdiction

instruments

relating

by the Permanent

to

minorities

Court of International

to control to be exercised by the Council of the The minorities States were subjected to the comof the Court

in regard

to “any difference

of opinion

as to questions of law or fact arising” out of the provisions of the minorities treaties between them and “one of the Principal Allied and Associated

Powers

or

any

other

Power,

a

Member

of

the

Council

of

the League of Nations”. The reason for the statement “that the League alone had the duty of controlling and guaranteeing the observance” of the minorities obligations (U.N.Doc. E/CN.4/367, 7 April 1950, p. 17) is, therefore,

not

quite

but

Article

clear.

In its advisory opinion given in July 1950 on the international status of South-West Africa, the Internationai Court of Justice found that the compulsory jurisdiction of the Court as provided in the Mandate was still in force — a finding which may also have some bearing on the minorities treaties, It should, however, be noted that, in arriving at this conclusion, the Court based itself not only on Article 37 of its Statute also

on

80,

para.

1, of

the

Charter,

under

which

nothing

contained in the Charter on the international trusteeship system “shall be construed . . . to alter in any manner the rights whatsoever of any states...”

(International

nion:

I.CJ.

Judge

McNair

Reports

1950,

status

p. 138),

(ibid., p. 158)

It is difficult to understand

compulsory

jurisdiction

of the

and

of South-West

See

that

also

Africa,

the

of Judge

Read

particularly

as

why the Study made Court,

to the Court had been granted under the minorities

the Council members ciated Powers.

19.

This

principle

but also to each

was

recognized

Advisory

individual

(ibid.,

+

p. 169).

no mention the

opi-

opinion

right

of the

to

apply

and

Asso-

treaties not only to

of the Principal

Allied

by the International

Court of Justice in the above mentioned advisory opinion with regard to the mandates system, when it said: “since their fulfilment [of the obligations assumed by the Mandatory] did not depend on the existence of the

League of Nations,

this supervisory

they could

organ

ceased

not be brought

to exist”

to an

end

(ibid., p. 133),

merely

because

MINORITIES

that

has

not been

done,

as merely suspended. *

AND

the

THE

CLAUSULA

declarations

must

101

be regarded

The Study then proceeded to examine the United Nations Charter, expressing the view that there was no reason to consider that the Charter had implicitly abrogated the minorities undertakings. Although the “new concept” of human rights and non-discrimination, as embodied in the Charter, “to a large extent coincides with the idea of protection of minorities”, it was not intended at San Francisco to substitute the former for the latter, as they were not identical. The protection of minorities was, indeed, a broader concept; it aimed at securing wider rights than equality and nondiscrimination, viz. “the right to enjoy special privileges (for example, the right to use the minority language in the courts and in official documents) and to maintain special institutions (schools etc.)... in order to enable the minority group to retain its individual characteristics”. 2 Likewise, the Study rejected the contention that the Stipulations concerning human rights and fundamental freedoms in the peace treaties concluded in Paris in 1947 with Bulgaria, Hungary and Roumania had implicitly abrogated the minorities obligations assumed by these States after the First World War. The authors of the new peace treaties did not intend the implied abrogation of the minorities provisions of the previous treaties, as they considered those provisions to have been deprived of any validity by the very force of events. ?? It would appear that a similar view with regard to the lapse of the minorities provisions was entertained by the authors of the draft treaty with Austria: this draft treaty included certain clauses granting special group rights to the Slovene and Croat minorities. It may be noted that such clauses appear in the final text of the State Treaty concluded with Austria on May 15, 1955. ** 20. U.N.Doc. E/ON.4/367, 7 April 1950, pp. 10-17. 21. 1000, p. 19. 22. Ibid., pp. 27-32. 23. See Egon Schwelb, The Austrian State Treaty and Human Rights, The International and Comparative Law Quarterly, April 1956, pp. 265276.

It is perhaps

worth

mentioning

that,

in implementing

the

obliga-

tion to recognize the minorities provisions of the Peace Treaty of Saint-

102

R FEINBERG

N.

Lastly — and still within the framework of the ordinary causes of extinction — the Study also dealt with the territorial transfers and population movements effected in consequence of the Second World War. As to the changes which took place with respect to the status or territorial composition States

of certain

bound

by minority

the

obligations,

Study

advanced the thesis that the said obligations were “personal”

obligations, and that a “successor”

state

(the Union

of Soviet

Socialist Republics, for instance) “which absorbs an autonomous territory or which annexes an area detached from another State, does not inherit the obligations of that area or State with respect to the protection of minorities”. ** On the other hand, population movements could not, of themselves, be regarded as having terminated the minorities protection regime,

unless

all minority

elements

within

State

any

entirely disappeared, so that the protection regime longer serve any useful purpose. *°

had

could no

II.

In the second title of Part I of the Study, its authors endeavoured to ascertain whether, on the basis of the c.r.s.s., the States which undertook obligations with regard to minorities “may not justifiably claim to be discharged therefrom on the ground of a radical change of circumstances”, or, in other words, whether there had been any change of such a nature as to bring into operation the c.r.s.s. The Study began by asserting that the “legal doctrine recognizes the clause rebus sic stantibus” and that “an important

change

of the

factual

circumstances

from

those

under

which a treaty was concluded may cause that treaty to lapse. In such cases the clause rebus sic stantibus applies if invoked by the Governments”’. 7°

Some

general

remarks

then

followed

with

regard

to the

Germain-en-Laye of September 10, 1919, as “fundamental laws’, Austria incorporated those provisions in her Constitution, As Article 149, para. 1, of the Constitution, by which such incorporation was effected, has been neither abolished nor amended to this day, the minorities provisions still remain part of Austrian constitutional law (ibid., pp. 272-273).. 24, U.N.Doc, E/CN.4/367, 7 April 1950, p. 34. 25. Ibid., pp. 34-35, 26.. 1000. p. 36.

MINORITIES AND THE CLAUSULA

103

clause and the method of its application. International law, it was said, gave that clause a very limited scope and viewed its application as being of an exceptional character. The authors of the Study were, therefore, guided by a strict conception of the clause. They did not deem it necessary to define the conditions that must be fulfilled in order to bring the clause into operation and they set out from the assumption that the following two conditions must be fulfilled: “In the first place it is necssary that certain factual conditions which existed at the moment of the conclusion of the treaty and in the absence of which the parties would not have concluded that treaty, should have disappeared. In the second place, the new circumstances should differ substantially from those which existed at the time when the treaty was concluded, so as to render its application morally and politically impossible”. 7

As to the procedure which should be followed by a State invoking the

it was

clause,

said

that

such

State

would seem, divest itself [of its obligations]

“may

not,

it

on its authority

alone”, but should obtain the consent of the other contracting parties. After

those

preliminaries,

the

Study

went

on

to examine

whether “as regards the international protection of minorities, both the general political conditions of the international world and the special conditions of the States having incurred obligations have changed so radically that the clause rebus sic stantibus is applicable”. ** To begin with, the authors of the Study pointed to the dissolution of the League of Nations and to the main consequences of such dissolution, viz. the lapse of the League guarantee and of the possibility of modifying the minorities protection provisions with the assent of the majority of the League Council. Special importance attached to the League guarantee and to the detailed procedure established by the Council for the application thereof, since the States which were bound by the minorities treaties considered the guarantee and the procedure as being safeguards against direct intervention on behalf of minorities by the contracting States

27. Ibid., p. 37. 28. Ibid., p. 38.

104

N. FEINBERG

which, “as history has shown, has often given rise to abuses”. *” Likewise, the whole balance of the system was upset by the disappearance of the possibility of reducing, or even of terminating, the minorities obligations with the consent of the League. Another important change of circumstances was to be found in the recognition of the principle of respect of human rights and of the principle of non-discrimination, as embodied in the United Nations Charter and in the Universal Declaration of Human Rights of 1948. Although the regional regime for the protection of minority groups, as laid down in the minorities

treaties

and

declarations,

is not

at all identical

with

the new regime for the protection of human rights which aims at being applicable to all States and to all human beings — it “has to a large extent been supplanted” and “does not possess the standing that it had immediately after the First World War’. 5° A third factor is considered to be the operation of the minorities protection regime in the inter-war period and its abuse by the German

and Hungarian

minorities.

“Experience

has shown”, the Study says, “that in most cases the minorities protection regime has not given the expected results”, and, “immediately after the Second World War, the realization of the dangers which the existence of certain national minorities might

entail

for a State

led to mass

transfers

of minority

populations”, ** a method entirely different from that adopted by the Paris

Peace

Conference

of 1919-1920.

Finally, the opinion was advanced that the position of the States which are either bound by minorities treaties and declarations or which have a particular interest in them, had undergone considerable change and was not the same after the Second World War, as it had been thirty years previously. While the minorities protection regime was to some extent established by way of “compensation” to the neighbouring States with which the minorities of the newly reconstituted or considerably enlarged States had racial, linguistic or cultural affinities, on the other hand it must be admitted that

29. Ibid., p. 17. 30. Ibid., p. 41. 31. Ibid., p. 42.

MINORITIES AND THE CLAUSULA

105

“the untold suffering and losses” that fell to the lot of such States as Poland, Czechoslovakia and Yugoslavia during World War II, were brought about mainly by the neighbouring States with which the minorities in the suffering States were in sympathy. Furthermore, considerable territorial and population changes took place in Germany which was obliged to receive millions of Germans from other countries, as well as in the U.S.S.R. which annexed the eastern part of Poland,

Sub-Carpathian

Russia,

Bessarabia

and Bukovina,

so that few Russian or Ukrainian elements were left outside the borders of the U.S.S.R., and Russia’s position — as well as that of the neighbouring People’s Republics — may be said to have undergone a “radical change”. The authors of the Study also pointed out that even though, juridically speaking, the undertakings relating to the protection of minorities were assumed either towards the League of Nations or towards a specific number of States, “it was

intended

that

[they]

should

be binding

upon

all States

belonging to a certain geographical area ...”.°? If, therefore, minorities protection ceased to exist in a State within this area, another State in the same area would appear to have grounds for considering that an important change had taken place.

IV. Part II of the Study makes a thorough scrutiny of each of the seventeen minorities undertakings, all of which are examined first in relation to the four ordinary causes of extinction dealt with above; and secondly in relation to any changes of circumstances,

whether affecting all the minorities

States (such as the dissolution of the League) or in varying degrees only some of them. It would be beyond the scope of this article to go into a detailed examination of all the arguments advanced in the Study in regard to each of the minorities undertakings. We shall, therefore, confine ourselves to dealing with only a few of them. It should be noted that the undertakings have been clas32.

Ibid. p. 45.

sified in the Study with reference to some of the similarities that they display. The obligations assumed by the three Baltic States

(Estonia,

Latvia

and

Lithuania)

are

considered

as

having come to an end by the incorporation of those States within the U.S.S.R. The two other declarations (those of Albania and Iraq) appear only to have been suspended, and would re-enter into force upon the United Nations deciding to succeed the League of Nations in this respect. True, the authors of the Study aver that the United Nations has to take this decision within a reasonable time, but they do not choose topfixs ites Next follows an examination of the status of the four peace treaties concluded in 1919-1923 with the then vanquished States, and in regard to three of them (Austria, Bulgaria and Hungary) the conclusion arrived at is that the minorities provisions incorporated in those treaties should be considered as no

longer

in force

—

and

that,

despite

the

fact

that

in

the Second World War Bulgaria and Hungary fought on the side of the Axis and that the inhabitants of Austria did the same. As

for

Turkey,

the

question

was

raised

whether,

seeing

that the Paris Peace Conference of 1946 considered the minorities protection regime in the above three States as having ceased

to Turkey

to exist, the same

which

throughout

should

the

served neutrality. “This argument”, cogent, is not conclusive’, and the

not a fortiori apply

Second

World

War

pre-

says the Study, “while “obligations undertaken

by Turkey have retained their validity”’.°+ A far-reaching reservation, however, accompanied the conclusion, considerably weakening

its significance,

viz.:

“unless it is considered

that

all obligations concerning the treatment of minorities are now no longer valid’’. * In proceeding to deal with the five minorities treaties, the Study maintained that the decisions taken and the opinions expressed by the authors of the Paris Peace Conference of 1946 implied that the former minorities protection regime in 33. 34. 35.

Ibid., pp. 47-51. Ibid., pp. 52-57. Ibid., p. 57.

MINORITIES AND THE CLAUSULA

107

Roumania “had already ceased to exist”;** that owing to a “profound and general” change of circumstances the regime in Poland was “no longer in force”; and that owing to a “far-reaching change of circumstances” the treaty concluded in 1919 with Czechoslovakia was “no more applicable”. * A considerable change of circumstances is recognized to have taken place in regard to Yugoslavia, such as ‘justifies the view that, at least as regards the minorities which assisted Yugoslavia’s enemies, the regime laid down by the treaty of 1919 is no longer applicable’. *° Finally, concerning Greece, it was stated in the Study that “with regard to the ordinary causes of extinction of obligations, there appear to have been none which would extinguish Greece’s obligations in connexion with the protection of minorities”. “° It was also affirmed that, with regard to the minorities protection regime established by the Treaty of Lausanne of 1923, “no ordinary cause of extinction of obligations and no particular change of circumstances is to be noted”. *t This is a reference to Article 45 of the Lausanne Treaty by which Greece undertook to confer on the Moslem minority in her territory the same rights as were conferred by the Treaty on the non-Moslem minorities of Turkey. The Study ends with a chapter entitled “Final Observations”, from the contents of which — as indeed from the Study as a whole — one realizes how great and serious were the difficulties which confronted the Secretariat in drafting its findings and conclusions. In

those

“Final

Observations”

it

is,

inter

alia,

said:

“Such are the conclusions reached for each country separately if the ordinary causes of extinction of international obligations are considered from the strictly legal point of view, and if the narrowest interpretation is given to the expression rebus sic stantibus. It should, however, be added that if the problem is regarded as a whole, there can be no doubt that the whole minorities

36. Ibid., pp. 58-59. 37. Ibid., pp. 59-62. 38. Ibid., pp. 62-64. 39. Ibid., pp. 64-65. 40. Ibid., p. 65. 41. Ibid., p. 66.

108

N.

FEINBERG

protection regime was in 1919 an integral part of the system established to regulate the outcome of the First World War and create an international organization, the League of Nations... But this whole system was overthrown by the Second World War. All the international decisions reached since 1944 have been inspired by a different philosophy. The idea of a general and universal protection of human rights and fundamental freedoms is emerging... This new conception is clearly apparent in the San Francisco Charter, the Potsdam decisions, and the treaties of peace already concluded or in course of preparation... The provisions of the [peace] treaties and the opinions expressed by the authors of the treaties imply that the former minorities protection regime has ceased to exist so far as concerns the ex-enemy countries with which those treaties have been concluded. It would be difficult to maintain that the authors of the peace treaties would have adopted that attitude if they had supposed that the engagements assumed in 1919 respecting the treatment of minorities would remain in force for the States which do not fall within the category of ex-enemy States. Reviewing

the situation

as a whole,

therefore,

one

is led

to conclude that between 1939 and 1947 circumstances as a whole changed to such an extent that, generally speaking, the system should be considered as having ceased to exist”. It is of interest to note that after having been submitted to the Commission on Human Rights the Study was severel y criticized by the Greek representative who, at the 179th meeting of the Commission, held on May 4, 1950, charge d the Secretariat that in its present form the Study “lacked a proper balance”.

He stated that the Study, while advancing

the opinion that the minorities undertakings which burdened the ex-enemy States had become extinct, meant to suggest that the position in regard to other States was not so certain.

“If ex-enemy

States

had

been

relieved

of the

burden”,

he

continued, “... the others should certainly be relieve d of it”. _ The Secretary’s reply, in a memorandum dated 27th March 1951, was that the Study, taken as a whole, does not support

42. Ibid., pp. 70-71. 43. U.N.Doc. E/CN.4/SR. 179, 1950, p. 7. 44, U.N.Doc. E/CN.4/367/Add.1,16 27MayMarc h 1951, p. 1,

MINORITIES AND THE CLAUSULA

109

the above contention; “certainly, it was never the intention of its authors to convey this impression ...”.# Concer ning Greece, in particular, the Secretariat stated: “Only in regard to the special regime established bilaterally between Greece and Turkey does the Secretariat take the position that Greece

(and also Turkey) may still be bound”. The memorandum then reiterates its “general conclusion... ‘that generally

speaking the system to exist’ ”. «7

should be considered

as having ceased

\+ Before embarking on a critical analysis of the Study, it may not be amiss to examine briefly the opinions advanced by authors on the question of the survival of the international regime of minorities protection. Indeed, Article 38, para. 1 (d), of the Statute of the International Court of Justice expressly refers to doctrine, as expounded by writers, as to a subsidiary means for the determination of rules of law. ‫י‬/‎

Already before the end of the War — in July 1944 — Mr. Sean Lester, the acting Secretary-General of the League of Nations at the time, observed in his memorandum “Powers and Duties Attributed to the League of Nations by International Treaties” that “it is impossible to foresee how much of the system [of the international protection of minorities | will be regarded as surviving or will be re-established after the present war’’. 4s A perusal of the legal writings of the post-World War II period shows that almost all authors who deal with the question of the validity of the minorities treaties and declarations arrive at the conclusion that those treaties and declarations have lapsed and are no longer in force. While at the beginning of 1945, J. Kunz felt justified in writing that “nothing is yet known as to whether the ‘Big Three’ intend to maintain... or to drop the international law 45. 46. 47.

Ibid., p. 2. Ibid. Ibid.

48. League of Nations. Powers and Duties attributed to the League of Nations by International Treaties, Geneva, 1944, p. 36. 49. Joseph L, Kunz, The Future of International Law for the Protection of National Minorities, American Journal of International Law,

vol. 39, Washington,

1945, p. 94.

110

N.

FEINBERG

for the protection of national minorities’,*® in an article published nine years later he had no hesitation in saying that “the decline of this whole department of international law [the minorities system] is a fact...”.°° He added with a shade of irony that if “at the end of the first World War, ‘international protection of minorities’ was the great fashion, ... recently this fashion has become almost obsolete. Today, the well-dressed international lawyer wears ‘human right’”’.** Dealing with the fate of the international regime of minorities protection, in his lectures at the Hague Academy of International Law in 1947, Prof. W. Rappard said:

“Au terme

de la seconde guerre mondiale, il ne fut guére question de protéger les victimes de l’intolérance nationale. Soit échec des tentatives de la Société des Nations, soit éclipse des sentiments

d'humanité qui les avaient inspirées, soit aveu d’impuissance de la part de la communauté internationale, toujours est-il que nul n’a proposé de faire revivre la lettre morte des traités des

minorités”. 5? In the same

year G. Kaeckenbeeck,

for fifteen years

presi-

dent of the Arbitral Tribunal in Upper Silesia, in the lectures delivered by him at the same

Academy,

stated:

“Tout ce sys-

téme [of minorities protection], qui avait été un des développements spectaculaires du droit international particulier de lentre-deux-guerres, se trouve abandonné, et nous trouvons à sa place... le principe... du respect universel et effectif des droits de l’homme et des libertés fondamentales pour Tous... 27 A year later, in his lectures at The Hague, G. G. Fitzmaurice, then deputy legal advisor and at present legal advisor to the Foreign Office, advanced a similar opinion, when he said: “It should be noticed... that they [the human rights

clauses in the Peace Treaties of 1947] serve as a kind of minorities provision, and replace the elaborate clauses on the 50.

Joseph L. Kunz,

The present Status

of the International

Law

for

the Protection of Minorities, A.J.1.L., vol. 48, Washington, 1954, p. 282. 51. Ibid. See also Kunz, La Crise et les Transformations du Droit des Gens, Recueil des Cours de l’Académie de Droit International de

La Haye (hereafter quoted: “R.A.D.I.”) vol. 88, 1955-II, p. 97-98. 52. William ₪. Rappard, Vues rétrospectives sur la Société des Nations, R.A.D.I., vol. 71, 1947-II, p. 187. 53. Georges Kaeckenbeeck, La Charte de San Francisco dans ses rapports avec le Droit International, R.A.D.1., vol. 70, 1947-I, p. 261.

MINORITIES AND THE CLAUSULA

111

treatment of minorities which figured in the Peace Treaties after the war of 1914-1918”. 5: Not less definite is the attitude taken by L. Cavaré in his

“Bien qu’elle [the minorities

textbook on international law:

protection] ne soit plus une donnée du droit positif, elle présente toujours un intérêt historique et sociologique”. * The same opinion is held by Ch. Rousseau in his textbook: “Depuis 1919 deux régimes juridiques ont été organisés par le droit conventionnel,

l’un au profit des minorités,

l’autre au

profit des apatrides et des réfugiés. Ce dernier seul subsiste aujoud’hui... Lié à l'institution de Genève, le régime [of minorities] devait s’affaiblir et disparaître avec la Société

des Nations.... Le système ne devait pas être rétabli à l'issue de la deuxième guerre mondiale”.% Charles de Visscher, former Judge of the International Court of Justice, also considers the minorities regime to have disappeared: “la disparition des régimes conventionnels de protection des minorités... [atteste] la régression du respect des droits fondamentaux de l’homme au moment même où l'Organisation internationale se complait à leur proclamation théorique”. 5’ Finally, Prof. S. Tchirkovitch wrote: “Du fait de la guerre

et de cette attitude des minorités

[of hostility towards the

States to which they belonged], surtout des minorités allemandes, le régime international pour la protection des mino-

rités,

tel qu'il fut

institué

par

les traités

de 1919-1920,

s’écroula définitivement et ne fut pas repris après la guerre

de 1939-1945”. 5° 54. 55. Paris,

56.

The

G. G. Fitzmaurice,

R.A.D.I.,

vol. 73, 1948-II,

Juridical

Clauses

Peace

of the

Treaties,

p. 302.

Le Cavaré, Louis 1951, p. 249. Rousseau, Charles

Droit

Droit

International

International

Public

Positif,

Public,

Paris,

tome

I,

1953,

pp. 218-220. 57.

Charles

de

Visscher,

Théories

et Réalités

en

Droit

International

Public, Paris, 1953, pp. 212-213. 58. Stévan Tchirkovitch, La Règle de non-discrimination et la Protection des Minorités, Revue Générale de Droit International Public, Tome LV — 1951, Paris, p. 254.

(International Law, A Treatise, In L. Oppenheim — H. Lauterpacht, Vol. I. — Peace, eighth edition, London, 1955, p. 716) it is said: “So

long as the general protection of fundamental human rights, through indisputably binding obligations under the aegis of the United Nations and otherwise, has not become part of the law, there seems to be a need for the protection of minorities through special treaties”. This

112

N.

FEINBERG

It may be pointed out that in almost all the above-quoted passages, the authors, while asserting the lapse of the minorities treaties and declarations, fail to state the legal ground for their assertions. In some instances the statements are accompanied by a close analysis of the circumstances which, in the opinion of the authors, have brought about the failure of the international minority system, such as: ‘the regional character of the regime and hence the resentment of the States bound by it; the inadequacy of the procedural law and its inadequate handling by the organs of the League; Germany’s exploitation of the regime for political ends and the discredit attached to it by the fact that certain minorities played the role of a fifth column; Poland’s declaration at the League Assembly of 1934 that she was not prepared in future to co-operate with the League in the latter’s supervision of the observance by Poland of her minorities obligations; the breakdown of the Versailles system. But that analysis can hardly be regarded as a legal explanation of the termination of the treaties and declarations.

At best, it may

be said to contain

arguments and considerations to be taken into account any discussion as to whether the international regime minorities protection should be maintained, abolished revised.

in of or

submission is probably made on the assumption that Article 25 embodied in the draft covenant on civil and political rights (which aims at the

protection

of

ethnic,

religious

or

linguistic

minorities)

would

be

re-

tained by the United Nations Assembly. At any rate, the author speaks of the “need” for special minorities treaties and does not affirm that such treaties do actually exist. Ernst Sauer, after dealing with the provisions embodied in the peace treaties of 1947 concerning non-discrimination, asks: “Are the minorities rights hereby abolished?” His answer is that “it may be assumed [that

they

are]”.

See

E.

Sauer,

Grundlehre

des

Volkerrechis,

Kôln-

Berlin, 1955, pp. 112-113. See also Marcel Sibert, Traité de Droit International Public, Le Droit de la Paix, tome 11, Paris, 1951, pp. 505-509; Inis L, Claude,

bridge,

Jr., National

Minorities,

1955, pp. 58, 69; Bagley,

An

International

op. cit., pp. 7, 133-134.

Tchirkovitch (supra) mentions Internationales” of Paris, under

Problem,

that the “Institut des Hautes the direction of Professor M.

Cam-

Etudes

Sibert, has instituted an inquiry into the validity of the minoritie s regime, and adds that the results would be published in forthcoming issues of the Revue Générale de Droit International Public. Unfortunately, they have not

been

published

of the inquiry nor Pp. 256, note 6.

to this

of the

day,

so

replies

that

nothing

received.

See

is known

of the

Tchirkovitch,

op.

scope

cit.,

MINORITIES

AND

THE

CLAUSULA

113

VI. It is not the purpose of the present article to discuss all of the legal problems raised by the Study and to examine all the reasons and arguments advanced by its authors in support of their contentions and conclusions. Our intention is to confine ourselves to the c.r.s.s. as invoked in the Study and to its application as suggested by the authors. As we have seen, the “change of circumstances

as a whole”

was the main basis on which the Study was founded and, contrary to international practice, the Secretariat showed no hesitation in expressly invoking the c.r.s.s. It is a well-known fact that governments generally refrain from invoking the clause 60 nomine, even when advancing arguments which in essence are intended to justify their claim for release from international obligations on the ground that the latter were entered into in circumstances which in the meantime have radically changed. Of the thirty six instances in which, until 1934, a change of circumstances was adduced as a ground for the termination of international obligations, the c.r.s.s. was, according to Chesney Hill, invoked expressly and by name only in six.” Nor was the clause expressly invoked in the three most

cases

important

after

the

Second

World

War

which

were actually connected with the doctrine of rebus sic stantibus, viz. the conflict between the United Kingdom and Egypt over the Anglo-Egyptian Treaty of 1936, which was submitted in 1947 to the Security Council; the exchange of notes between the United States and Panama in regard to the Defense Sites Agreement of 1942; and the disagreement at the Belgrade Conference of 1948 concerning the Danube Convention of 1921.” “Paradoxically enough’, writes P. Berger 59.

Chesney

Law,

national

national Law,

Hill,

The

Columbia, Under

Doctrine

1934,

pp.

the Auspices

of “Rebus

26 ff. See

Sic

also

of the Harvard

Stantibus”

in Inter-

Research

in Inter-

Law

School,

...

Law

of Treaties, Washington, 1935, pp. 1097-1103, (hereafter cited: ‘“Harvard Research in International Law”), which, in considering the practice of States, quotes seven instances in which States have invoked the c.r.s.s. expressly and by name. 60. See Peter Berger, Zur Klausel “rebus sic stantibus”, Osterreichische Zeitschrift fiir Oeffentliches Recht, Band IV (neue Folge), Wien, 1952, pp. 27-38. See also H. W. Briggs, Rebus Sic Stantibus before the Security Council: The Anglo-Egyptian Question, A.J.I.L., vol. 43, Washington,

1949, pp. 762-769. c.r.s.s.

is

expressly

It may

be of interest,

invoked

and

pleaded

however, in

the

to mention statement

that the

concerning

N. FEINBERG

114

in his article on the above three cases, “the parties which sought to be released from the existing treaty obligations re-

[the c.r.s.s.| of

the clause

frained from invoking by name

which they made use. On the other hand, those who defended the treaties expressly pointed to the fact that the c.r.s.s. had been relied on, as though this would level accusation against their opponents. This proves that the invocation of the c.r.s.s. in international law is still accompanied by some sort of disrepute”. 51 Berger explains the attitude adopted by governments towards the c.r.s.s. by the fact that it has been frequently abused in the past and is likely to be abused in the future, as well as by the influence of the great codifications of civil law of the 18th century which either failed to include the clause or limited the scope of its application. 5 An additional — and possibly principal — reason for the reluctance of governments to invoke the clause is no doubt to be found in the fact that the doctrine of rebus sic stantibus has to this day not been recognized in any general international convention, nor has it been endorsed by any international court or arbitral tribunal. °° the international status of South-West Africa made before the International Court of Justice by the representative of the Union of South Africa. In his opinion, the dissolution of the League was “a change of so radical a nature in the application of, and in the method of implementing, the Mandates System, that the Union Government would... be fully justified in claiming that they are no longer bound by the terms of the Mandate” (I.C.J., Pleadings etc., International Status of SouthWest Africa, 1950, p. 280). Cf. also on the applicability of the c.r.s.s. in this case ibid., pp. 212-214. 61. Berger, op. cit., p. 60 (translated from German). See also M. Bourquin,

R.A.D.I., Droit

Stabilité

et Mouvement

vol. 64, 1938-II,

International,

p. 397;

R.A.D.I,

dans

VOrdre

Juridique

11, Lauterpacht,

vol. 62, 1937-IV,

Règles

p. 303;

International,

Générales

Lammasch,

du

Rebus-

sic-stantibus-Klausel, Worterbuch des Vôlkerrechts und der Diplomatie, herausgegeben von Dr. Karl Strupp, Zweiter Band, Berlin, 1925, p. 336.

62.

Berger, op. cit., p. 60.

63. In the case of the Free Zones of Upper Savoy and the District of Gex, the Permanent Court of International Justice stated that “as the

French

comes

argument

unnecessary

principle

which

arise

treaties by reason which

the theory

[based

on

for the Court in

c.r.s.s.]

fails

to consider

connection

of change can

the

with

the

any

the

of the

theory

of circumstances,

be regarded

on

as constituting

such

of

as

a rule

facts,

it be-

questions the

the

of

lapse

of

extent

to

of international

law, the occasions on which and the method by which effect can be given to the theory if recognized,...” (P.C.LJ., Series A./B. No. 46, p. 158). The significance of this passage is controversial to the present

MINORITIES

AND

THE

CLAUSULA

115

Even at the present time there are authorities who deny the existence of the c.r.s.s. as a norm of positive international law. Kelsen even considers it to be “in opposition to one of the most important purposes of the international legal order, its purpose of stabilizing international relations”.* “The relatively few cases”, continues Kelsen, “in which states have referred to essential change of circumstances to justify their noncompliance with treaty obligations may be interpreted simply as violations of international law rather than as evidence of the clausula rebus sic stantibus as a rule of positive international law”. 55 Yet it may be said that the number of authors who out of devotion to the principle pacta sunt servanda question the very existence of, and necessity for, the c.r.s.s. is now very small. In truth, the problem uppermost in the minds of the majority of jurists is how to find a proper balance between stability and security, on the one hand, and the social disequilibrium which may result from radical and fundamental changes, on the other; in other words, how to give the clausula a constructive content and to establish a balanced procedure, which will not encourage anarchy and undermine the stability towards which all legal order should tend. One cannot, of course, criticize the authors of the Study on the ground that, having been requested to express an opinion on the validity or otherwise of the minorities treaties and declarations, they thought it necessary to examine in detail all the changes that took place in international life in day. Some authors interpret it as implying readiness on the part of the Court to “recognize the principle... that a change of conditions may have an effect on the continuation of treaty obligations’ (H. Lauterpacht, The Development of International Law by the Permanent Court of International

Justice,

London,

1934,

p.

43).

See

also

H.

Rolin,

Les

Principes de Droit International Public, R.A.D.1., vol. 77, 1950-II, p. 440, note 1. Contra: H. Kelsen, Principles of International Law, New York, 1952,

p. 360, note

51;

Ch.

Rousseau,

Principes

Généraux

du Droit

Inter-

national Public, Tome I, Introduction, Sources, Paris, 1944, pp. 589-590. In the Russian Indemnity case, 1912 (between Russia and Turkey), the Permanent

Court

of Arbitration

was

not

called

upon

to deal

with

the

c.r.s.s, and thus had no opportunity of contributing towards a clarification of the rule. It had in this case to deal only with an exception of force majeure — which it refused to admit. 64. Kelsen, op. cit., p. 359. 65. Ibid., p. 360. See also H. Kelsen, Théorie de Droit International Public, R.A.D.1., vol. 84, 1953-III, pp. 162-164.

116

N.

FEINBERG

the wake of the Second World War. Surely the considerations of expediency that dictate to governments to abstain from mentioning the c.r.s.s. by name, do not guide the SecretaryGeneral of the United Nations in his work. There is no reason why the Secretariat, on being called upon to investigate a complicated legal problem, should hesitate to base its opinion on a legal principle which has not yet been finally defined or the existence of which may still be in question. It would appear, however, that the Study has made little contribution towards dispelling the ambiguity and uncertainty surrounding the expression c.r.s.s. and removing the “effroyable confusion” which — as Prof. Bourquin put it — exists in legal literature in regard to the clause. °° VII. “Reviewing the situation as a whole,... one is led to conclude that between 1939 and 1947 circumstances as a whole changed to such an extent that, generally speaking, the system should be considered as having ceased to exist”. These, as we have seen, are the concluding words of the Study, and we may be justified in regarding this passage as containing the gist of the opinion given by the Secretariat on the question under discussion. One should not interpret the words “generally speaking” as implying a reservation. Likewise, if in a previous passage the authors stated that “from the strictly legal point of view, the result [that the minorities treaties had ceased to exist] seems clear in the cases in which the formal liquidation of the war has been completed by the conclusion of peace treaties” " — and by that they had in mind Bulgaria, Hungary and Roumania —, it is not to be understood that the conclusions with regard to the other States are legally less well founded. Most likely, all that the authors intended to say was that in dealing with the above three States they felt they were on more solid legal ground. One cannot avoid the impression that the authors of the Study regard the extinction of the international regime for the protection of minorities as having occurred automatically 66. 67.

Bourquin, op. cit., p. 398. U.N.Doc, E/CN.4/367, 7 April 1950, p. 70.

MINORITIES AND THE CLAUSULA

117

— and if so, that would constitute an appli cation of the c.r.s.s. which has no basis either in doctrine or in inter national practice. Such application of the c.r.s.s. is the more surpr ising, as it is in direct contradiction to the general theoretical considerations given by the Secretariat itself at the begin ning of Title 2 of Chapter I. * It is doubtful whether there are many jurists who would maintain today the thesis of automatic termination of international obligations as a result of changed conditions. This thesis could, obviously, not be maintained by jurists who regard

a fundamental

change

of circumstances

as rendering

a treaty voidable, i.e., entitling the interested State to claim the termination of the treaty, and Suggest that, in case a difference of opinion arises between the parties as to the applicability of the c.r.s.s., the matter should be brought before an arbitral or judicial tribunal or a competent international political authority.‘ But even authors who hold the view that a treaty becomes void — and not only voidable — by a change of circumstances, are of the opinion that the result is not automatic; that a declaratory act to that effect must first be made with the mutual consent of the parties; and that, in the absence of such consent, by a Court or by

an international political authority.” If there is any point regarding the c.r.s.s. on which there exists near unanimity among jurists, it is the rule against unilateral denunciation of international obligations. “The principle is well established”, says the Harvard Research in International Law, “that one party to a treaty does not have the right to terminate its treaty obligation unilaterally merely

upon the ground that it believes that the doctrine rebus sic stantibus is applicable to the treaty”’."? This principle was 68.

See

supra,

p. 103.

69. See D. Anzilotti, Cours de Droit International, Premier Volume: Introduction — Théories Générales (traduction frangaise), Paris, 1929, pp. 462-465; A. Cavaglieri, Règles Générales du Droit de la Paw, R.A.D.I., vol. 26, 1929- pp. 538-539. 70. See Jules Basdevant, Règles Générales du Droit de la Paix, R.A.D.1., vol. 58, 1936-IV, pp. 653-654; J. L. Brierly, Règles Générales du Droit de la Paix, ibid., p. 220; Bourquin, op. cit., p. 402; Georges Scelle, Précis de Droit des Gens, Principes et Systématique, deuxiéme

partie, 71.

Paris, Harvard

1934,

p. 419;

Research

P.C.I.J., in

Series

International

C, No. Law,

58, pp. p.

1108.

405-406. See

also the

118

N. FEINBERG

solemnly proclaimed in the Declaration of London of 1871 (quoted in the Study itself)? and reaffirmed on numerous occasions by various international bodies, ‘* among others by the Council of the League of Nations in 1935, after the re-establishment of compulsory general military service by Germany, and again in 1936, after the denunciation by Germany of the Treaty of Locarno. It is on this principle also that were based

the

“Convention

on

Treaties”,

adopted

in Havana

in

1928, in inter-American States relations, and the draft convention on “Law of Treaties”, prepared for the Research in International Law by the Harvard Law School. According to Article 15 of the Havana Convention, a contracting party which invokes the caducity of a treaty must obtain the consent of the other party or parties, failing which it may appeal to arbitration. ** In the same spirit, Article 28 of the Harvard draft convention lays down that in the application of the c.r.s.s. a treaty may cease to be binding only if so declared by a competent international tribunal or authority.” It is not clear on what legal grounds the authors of the Study came to the conclusion that the minorities treaties lapsed ipso facto, without any demand being made by the minorities States, without such demand being agreed to by the other contracting parties, or without such demand being recognized as justified by a competent international body. At best they could have arrived at the conclusion that if the States bound by minorities treaties should ask to be released therefrom, by invoking the c.r.s.s., there would be good ground to accede to their request. It would appear, therefore, that the authors of the Study were not justified in regarding the lapse of the minorities regime as a case of application of +6 6.

second

to the 1957, 72. 73. 74. Texts

report on

“The

Law

of Treaties”

submitted

by G, G. Fitzmaurice

International Law Commission: U.N. Doc. A/CN. 4/107, 15 March pp. 126, 134. U.N. Doc. E/CN. 4/367, 7 April 1950, p. 37, note 2. Harvard Research in International Law, pp. 1108-1109. M. of

O. Hudson, Multipartite

International International

Legislation, A Collection Instruments of General

vol. IV — 1928-1929, Washington, 1931, pp. 2382-2383. 75. Harvard Research in International Law, p. 1080.

of the Interest,

MINORITIES

AND

THE

CLAUSULA

VIII.

119

.

Throughout the Study, as well as in the additional memorandum mentioned above, it was stressed time and again that at the Paris Peace Conference of 1946 the authors of the peace treaties with Bulgaria, Hungary and Roumania “proceeded on the assumption that the obligations in question [with regard to minorities] were already extinct”, or, in other words, that “they apparently considered that the obligations... had not been

either

abrogated

or

confirmed,

since

they

no

longer

existed”. 7 Indeed, none of the documents relating to the work of the Conference — nor any of the texts of the peace treaties subsequently concluded — did indicate that the representatives of the Great Powers and other States convened in Paris had at all considered that the stipulations concerning minorities embodied in the old peace or minorities treaties with the above three ex-enemy States were still in force. It may be mentioned, for example, that the Yugoslav representatives demanded at the Conference that Hungary be obliged to acknowledge the right of ethnic groups to education in their mother tongues.7* No such claim would have been advanced if they had regarded the minorities provisions of the Trianon Peace Treaty of 1920 to be still binding upon Hungary. Even Hungary,

the only State

at the Conference

which

considered

the international minorities regime as still in force,” was not always corsistent in her atttitude. Thus, when in June 1946, Hungary submitted to the Council of Foreign Ministers a draft of detailed provisions for the protection of minorities to be included in the peace treaty with Roumania* — a document later referred to in her “Observations on the Draft presented to the Peace Conference — no Peace Treaty”, 76. U.N. Doc. E/ON.4/367/Add, 1, 27 March 1951, p. 2. 77. JN. Doc. E/ON.4/367, TApril 1950, p. 39, See also ibid., pp. 53. 54, 56. 78.

Paris

Peace

Conference,

1946,

Selected

Department

Documents,

of State Publication 2868, Conference Series 103, Washington, D.C., . 1110. 1 79. In the Aide-Mémoire submitted by Hungary on January 25, 1946, to

the

Council

of

Foreign

Ministers

in

opposition

to

the

transfer

of

Hungarians from Czechoslovakia, Hungary stressed that Czechoslovakia was still bound by the minorities treaty of 1919 and had to respect the rights of the Magyars. Claude, op. cit., pp. 121-122. 80. Ibid., pp. 138-139. 81.

Paris

Peace

Conference,

1946,

Selected

Documents,

pp.

1065-1066.

120

N.

FEINBERG

mention whatever was made by her of the existence of the minorities treaty of 1920. Obviously, as J. Robinson rightly points out, “if Hungary thought that the old minorities provisions were

still in force, she would

no doubt

have

said so

explicitly in order to strengthen her case.” * The authors

of the Study further stressed that, as regards

the minorities regime, the Paris Conference

of 1946 did not

consider the old minorities treaties to be tacitly abrogated by

the new peace treaties. Perhaps the best description of the content and purpose of the minorities treaties is to be found in the advisory opinion of the Permanent

Court

schools in Albania. Court

—

was,

of International

Justice

on minority

The object of those treaties —

first,

“to ensure

that

nationals

said the

belonging

to

racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State”; and, secondly, ‘“‘to ensure for the mino-

rity elements

suitable

means

for the preservation

racial peculiarities, their traditions

and their national

of their charac-

teristics”.** Clearly, neither the provisions included in the Paris peace treaties for assuring “to all persons... the enjoyment of human rights and of the fundamental freedoms, including freedom of expression, of press and publication, of religious worship, of political opinion and of public meeting”, nor the additional anti-discrimination clause inserted in the treaties with Hungary and Roumania, ** secure for minorities 82. Robinson, op. cit., p. 130. See also the statement of the Hungarian representative at the plenary session of the Conference, on August 14, 1946; after pointing out that it was known to the Hungarian Government that the United Nations Organization intended to prepare a charter on human rights, the representative added: ‘it would then seem necessary, until the entry into force of the code to be issued by the United Nations Organization, to come to an agreement whereby the States with a mixed central and eastern European population should pledge themselves to respect the exercise of these liberties” (U.N. Doc. E./CN.4/367, 7 April 1950, p. 31). From this observation, too, it may be gathered that Hungary was far from being convinced that the system

of minorities was still in force. 83. P.CIJ., Series A./B., No. 84. Article 2, para. 2, of the the country the obligation “that not, either in their content or in

64, p. 17. Treaty with Hungary imposes upon the laws in force in Hungary shall their application, discriminate or en-

tail discrimination between persons of Hungarian nationality on the ground of their race, sex, language or religion, whether in reference to

their persons,

property,

business, professional

or financial

interests,

sta-

MINORITIES AND THE CLAUSULA

121

those rights which, as distinct from equality and non-discrimination, are generally designated as “positive minority rights”, or “special rights and privileges”, or, to quote the above advisory opinion of the Court, rights necessary for “preserving the characteristics which distinguish them [ the minority elements] from the majority, and satisfying the ensuing special needs’. ** It cannot be said, therefore, that the international instruments of 1919-1920 and those of 1947 are identical, so that the former could not have been tacitly abrogated by the latter. Finally, the authors of the Study pointed out that according

to “regular practice”, a peace conference or congress, meeting after a war or a grave international crisis, was entitled to abrogate the territorial and political clauses of former treaties, without requiring the consent of all the States which were parties to them. This is a rule sanctioned by international law. “It is in fact generally recognized’, wrote Judge Negulesco in his individual opinion in the case of the Free Zones

of Upper

Savoy

and

the

District

of Gex,

“that

the

signatories of a great political treaty, which has changed the map of the world, may abrogate... the provisions of previous treaties which are not consistent with present conditions” * or, in the words of Georges Scelle: “un groupe de Puissances s’érige en gouvernement international [de facto government] et procéde 4 ces actes de législation autoritaire dans un but d’ordre public international”. But, as has been rightly said in the Study,

the

authors

of the

Paris

peace

treaties

did not

intend making use of this prerogative. They were of opinion that no action on their part was necessary in order to end the minorities protection regime, since they regarded it as a “dead letter”. It is significant that even the Jewish organizations, in applying to the Peace Conference of 1946 for the protection of the rights of the Jewish survivors of the holocaust in

tus, political

or

civil rights

or any

other

matter’.

An

identical

provision

wag included in Article 3, para. 2, of the treaty with Roumania. 85. P.C.IJ. Series A./B., No. 64, p. 17. 86.

P.C.I.J.,

87.

Scelle,

Series

A., No.

op. cit., p. 401.

22, p. 31.

122

‎‫א‬. FEINBERG

Bulgaria, Hungary and Roumania,** entirely disregarded the existence of the minorities provisions in the peace and minorities treaties concluded with the above three States at the close of the First World War. It is the more significant, as at the Peace Conference of 1919-1920 it was the Comité des Délégations Juives, representative of almost the whole of world Jewry, that exerted the greatest efforts to induce the Conference to adopt the minorities system.‘ In the memorandum submitted in August 1946 to the Paris Conference and signed by nine of the most important international and national Jewish organizations (among them the World Jewish Congress, the American Jewish Conference, the American Jewish Committee, the Board of Deputies of British Jews and the Alliance Israélite Universelle) there is no indication whatever of the fact that the Jewish representatives considered Bulgaria, Hungary and Roumania to be still bound by the obligations assumed after the First World War. On the contrary, one gains a clear impression from the memorandum submitted that its authors, too, had proceeded on the assumption that the minorities treaties had become defunct. °° 88.

Italy,

too, was

among

the

States

required

to

undertake

special

obligations for the protection of the Jews in Italy and Libya — but, as is known, Italy had not previously been bound by any minorities undertaking. 89.

See

N,

Feinberg,

La

Question

des

Minorités

à la Conférence

de

la Paix de 1919-1920 et Action Juive en faveur de la Protection Internationale des Minorités, Paris, 1929. 90. Statement submitted to the Peace Conference by the World Jewish Congress and others, Paris, August 20, 1946. The above assumption is supported by the surveys on the activities of the World Jewish Congress and the American Jewish Committee published by these two bodies.

See

Unity

in Dispersion,

A

History

of the

World

Jewish

Congress,

New York, 1948, pp. 248-260; Nathan Schachner, The Price of Liberty, A History of the American Jewish Committee, New York, 1948, pp. 194197. See also the article (in Hebrew) by Jacob Fleischer (Talmon), The Jewish

Question

at

the

Peace

Conference

of

1946,

Metzuda,

vol.

V-

Vi, London, 1948, pp. 162-194. The author who took part in the preparation of the memorandum submitted by the Jewish organizations writes: “the root of all the difficulties encountered in presenting the Jewish problem to the Peace Conference is to be found mainly in the nature of this intermediate period: all faith in minorities rights as conceived

in 1919

had vanished”

(ibid., p. 166);

“at the 1946

Conference

there

was

explicit opposition to any attempt to renew the minorities system” (ibid, p. 165); “in our approach to this matter [the status of the Jewish com-

munity

and

the

special

Jewish

needs

fields] we had particularly to beware the minorities system” (ibid., p. 186). This attitude, which was apparently

in the

cultural

of returning

dictated

and

organizational

to the concept

to the

Jewish

of

organiz-

MINORITIES

AND

THE

CLAUSULA

123

If that was the view held at the Paris Peace Conference of 1946 on the international regime of the protection of minorities, then the question naturally arises: What were the legal grounds for regarding the minorities provisions as extinct and as devoid of all force? No answer is provided in the Study to this crucial question.

IX. To sum up, we have seen that the Study endeavoured to apply the c.r.s.s. in a way which can hardly be said to be consistent with the principles generally accepted in doctrine and in practice; that this is not a case of tacit abrogation of the minorities obligations undertaken by the vanquished States after the First World War, with all the implications arising therefrom in regard to the validity of the treaties and declarations binding on the other States; and finally, that this is not an instance in which a peace conference has made use of its prerogative to abolish an existing legal order and to establish another in its place. We have also seen that, although all the authors who have dealt with the question of the validity of the minorities regime have arrived at the conclusion that the regime has lapsed, they have failed to explain the legal grounds for its lapse. J. Robinson, who in his article “From Protection of Minorities to Promotion of Human Rights” was the first to deal with the problem, remarked that “the general theory of termination of treaties as developed in textbooks of international law will be of little help. Nor will it serve any useful purpose to discuss in this connexion the question of the validity and applicability of the rebus sic stantibus clause”. °! But should we resign ourselves to this view? True, the ations at the Paris Conference for realistic reasons, did not later prevent the World Jewish Congress, in the “Memorandum concerning the validity of the post-Versailles treaties and other instruments of international protection of minorities” (submitted to the Secretary-General of the United Nations in December 1948), from reaching the conclusion that “whatever

the grounds

it is claimed

on

which

op.

cit., p. 129.

that

the

minorities

instruments

are no longer in force, these cannot be regarded as valid under existing international law. Therefore, all these minorities treaties and declarations must be considered as binding upon the signatories and their execution obligatory” (p. 15). 91.

Robinson,

124

N.

FEINBERG

question regarding the continued validity of the minorities system arose after a cataclysm such as the Second World War, and, as an outstanding international Committee of Jurists once put it, there are events that “create situations of fact which, to a large extent, cannot be met by the application of the normal rules of positive law’.* “The situation”, they continued, “is obscure and uncertain from a legal point of view, and will not become clear until the period of development is completed and a definite situation... has been established”. 5 This opinion, however, refers to the position of States

in

a

state

of

“formation,

transformation

and

dis-

memberment”, i.e., to “territorial sovereignty”, and not to the more modest question of the continuation or lapse of international obligations assumed by a State before the outbreak of a war. It falls, therefore, to the jurist to search for a legal explanation of that strange situation that the minorities treaties, without having been formally abrogated, were — and still are — regarded as terminated or as no longer applicable. It would appear that there is no other course than to fall back

on the desuetudo principle, although one is aware that the greatest care and prudence must be exercised in the rare cases in which it is invoked. The desuetude principle is accepted by a large number of writers. “International law”, says G. Schwarzenberger, “recognises the principle of desuetude, not only with regard to rules of international

customary

law,

but

also

with

regard

to trea-

ties”. °* P. Guggenheim says: “En vertu du droit international général, un traité cesse d’étre valable lorsqu’il se forme une coutume contraire du caractère dérogatoire”.% A similar opinion is voiced by Ch. Rousseau: “une coutume peut en effet . abroger un traité ou le modifier, en dehors de toute pro92.

The

Aaland

Islands

Question,

Report

of the Committee

of Jurists,

League of Nations, Official Journal, Special Supplement No. 3, October 1920, p. 6. 93. Ibid. 94. George Schwarzenberger, International Law, vol. I, International

Law

as

London,

applied

by International

1949, p. 199.

Courts

and

Tribunals,

second

edition,

95, Paul Guggenheim, Traité de Droit International Public, avec mention de la pratique internationale suisse, tome I, Genéve, 1953, p. 116.

MINORITIES

AND

THE

CLAUSULA

125

cédure 607166".95 According to G. Scelle: “les deux termes [desuetude and caducity] ne marquent...qu’une nuance et, juridiquement,

sont

équivalentes....En

présence

d’une

in-

compatibilité irréductible entre la nécessité sociale et l’expres-

sion formelle du droit positif, il faudra se décider soit à considérer que celui-ci subsiste en la forme, mais est désormais sans valeur social, et c’est la désuétude; soit qu’il reléve de Vorthopédie de la révision ou du couperet de l’abrogation, — et ce sera

la caducité’.*’

M. R. Pinto, too, is of the opinion

that: “l’abrogation d’une convention internationale par l'effet de non usage est généralement admise par la doctrine... La coutume peut en effet modifier les dispositions d’un traité. Ce non usage n’ouvre pas une prescription extinctive ou libératoire. C’est l’élément de fait d’un processus coutumier’’. °* Among the authors who admit the deswetuto principle in international law we might mention also Lord McNair,” J. L. Kunz, "5 Wilhelm Sauer? and M. Sibert. 1? 96.

Rousseau,

pp. 193-194)

Droit

International

is apparently

Public,

p.

67.

Cavaré

(op.

cit.,

inclined to deny the possibility of the termi-

“L’abrogation par désuétude estdesuetudinem: [Droit International Public]? La question est

nation of a treaty per elle possible en D.IP.

discutable. En tout cas, l’affirmative peut étre difficilement soutenue par ceux qui mettent à l’origine du D.I. la volonté indiscutable des Etats... admet

On

généralement

cause de sa précision, incertitude”. In his second report to the

15, 1957,

not recognize ive

of

such”.

He

on

on

of Treaties”

Commission,

à

toujours

à quelque

submitted

on March

G. G.

does

Fitzmaurice

of “any objective principle of law terminat-

mere

the

considers,

Law

exposée

Coutume,

la

sur

l’emporte

étant

“Law

the

International

the existence

treaties

le Traité

que

la Coutume

ground

however,

that

of...

obsolescence

“... failure

or

by both

over a long period to apply or invoke a treaty, or encing a lack of interest in it, may amount to a

disuetude

or

as

all parties

other conduct evidtacit agreement by

the parties to disregard the treaty, or to treat it as terminated”. Doc. A/CN.4/107, 15 March 1957, pp. 40,96.

UN.

Frangulis in A hesitant view on the matter is taken by M.A.-F. Théorie et Pratique des Traités Internationaux, Dictionnaire Diplomatique, publié par l’Académie Diplomatique Internationale, vol, III, Cha-

pitre X, Section IT, §7, F (Désuétude ou Prescription) — strange to say, has appeared without page year of publication. 97. 806110, op. cit., pp. 417-418. M. Roger Pinto, La Prescription en 98.

numbers

Droit

₪ volume which,

or indication

International,

of the

R.A.D.1.,

vol, 87, 1955-I, p. 431. 99. Arnold D, McNair, La Terminaison et la Dissolution des Traités, R.A.D.1., vol. 22, 1928-II, pp. 465-467. 100. Kunz, La Crise et les Transformation du Droit des Gens, R.A. D.I., vol. 88, p. 60. 101.

Wilhelm

102.

Sibert,

Sauer,

System

des

op. cit., pp. 344-345.

Vülkerrechts,

Bonn,

1952,

p. 384.

126

N. FEINBERG

The cases in international life in which international obligations are recognized to have fallen into desuetude, or in which the very question of the existence of the principle was raised, have so far been rare. The more important are the following: the conflict between France and several powers, principally Russia, in regard to the Holy Places and the validity of the 1604, 1673 and 1740 capitulations treaties with Turkey; the dispute between France and Great Britain at the end of the

19th

century

over

the rights of French

foundland under the treaties of Utrecht

nationals

in New-

(1713) and Versailles

(1783); the conflict between the same States in regard to the extradition regime in British India under the convention of March

7, 1815; :% the extinction

of the Holy Alliance

agree-

ment of September 26, 1815, which was never formally terminated; 1% the falling into desuetude of the provision embodied in Article 17 of the treaty of commerce between the United States and Norway of April 3, 1783, forbidding the expropriation of property belonging to nationals of one State and situated in the territory of the other; +> the modification by customary rules of certain capitulations treaties, especially those of Egypt, °° as well as of the legal status of the Congo District, as laid down by the General Act of the Berlin Conference of 1885 and the General Act of Brussels of 1890, and confirmed by

the Convention of Saint-Germain-en-Laye of September 1

the obsolescence

‫יש‬‎

of the provision of Article 18 of the Cove-

nant of the League of Nations which declared international

engagements entered into by members of the League to be of no binding force until registered with the Secretariat. 1° The falling into desuetude of the humanitarian intervention (at least in regard to its previous form of coercive intervention) is also mentioned’ as an instance: so also is the prac103.

Rousseau,

pp. 551-554, 104.

Principes.

Guggenheim,

op.

Généraux

Pinto,

op.

cit.

Droit

International

Public,

du Droit International

Public,

cit., p. 116.

105. Frede Castberg, La Méthodologie R.A.D.L, vol. 43, 1933-I, p. 338. 106.

du

p.

431;

Rousseau,

Droit

International

pp. 235-236. 107. Pinto, op. cit., p. 432. 108. Ibid., pp. 431-432; Guggenheim, op. cit., pp. 52-53. 109. P. Guggenheim, Les Principes de Droit Internat ional R.ADI., vol. 80, 1952-I, pp. 46-47.

Public,

Public,

MINORITIES

AND

THE

CLAUSULA

127

tice of unrestricted submarine warfare followed by most belligerents in the Second World War, which put in doubt the continued validity of the Naval Protocol of 1936. 39 Mention may further be made of the practice adopted by the Security Council of the United Nations with regard to the abstention or absence of a permanent member during a vote, despite the fact that Article 27(3)

of the Charter requires the

“concurring votes of the permanent members”. The principle of the lapse of an international convention per desuetudinem was also recognized in the award given in 1861 in the arbitration between Great Britain and Portugal in the

“Affaire

Yuille,

Shortridge

et Cie”.

The

Arbitration

Tribunal, after having ruled that a prolonged non-invocation of a treaty by the nationals of a State does not render that treaty obsolete, said: “La question changerait de caractère si le gouvernement de la Grande-Bretagne avait a plusieurs reprises refusé d’intervenir, estimant que le traité était tombé

en désuétude, ou s’il avait, pour le même poursuivre

une

intervention

commencée.

motif, renoncé Car

il est

à

certain

qu’il appartient aux gouvernements d’abroger expressément un traité ou d’en suspendre l’usage, ce qui devra être regardé par leurs sujets comme une désuétude dérogeant au traité”. The decisive element in a case of desuetude regarding an international treaty or convention is the falling into disuse of such treaty or convention as the result of a widely held conviction that although no formal legal act had expressly abolished the said instrument, it is no longer binding. Obviously, the desuetudo principle has no legal connexion with the doctrine rebus sic stantibus. The legal foundation of the c.r.s.s. is — according to the so-called subjective school — to be found in the will of the parties themselves at the time the treaty is concluded, and it is immaterial whether by this is meant the interpretation of the actual will of the parties or whether one assumes the existence of a tacit clause conventio omnis intelligitur rebus sic stantibus to be con110.

See Judgment

of German 110.

Major War

of the International

Criminals,

Military

Nuremberg,

Tribunal

1946, Cmd.

for the Trial

6964, pp. 107,

A. de Lapradelle et N. Politis, Recueil des Arbitrages 111. nationaux, tome deuxième, 1856-1872, Paris, 1923, p. 105.

Inter-

128

N.

FEINBERG

tained in every treaty. According to the other — the objective — school, the c.r.s.s. is based on the “essential”, “fundamental” or “vital” changes themselves or, as L. H. Woolsey

succinctly puts it, on “changes which... foundation of the engagement, that is, make performance impracticable except sacrifice; are inconsistent with the right or incompatible

with

the independence

take away the very its raison d’étre;... at an unreasonable of self-preservation,

of the

State;

modify

essentially the political relations...; make a treaty really inapplicable, or actually impossible of fulfilment’. 1” These considerations are entirely irrelevant for the concept of desuetude, which is based neither on the will of the parties at the time of entering into an agreement, nor on any external change of circumstancesthat may take placesubsequently. It depends rather on the very conduct of the parties at some future time, from which conduct one may infer their conviction that the treaty is de facto deprived of its binding force and is no longer applicable. Time is no doubt an important element in any definition of desuetude. Generally, a “great number of years”, a “long period” ** is required for the falling of a treaty into desuetude. But no rigid rules can be laid down. Cases may arise of treaties becoming obsolete even after a comparatively short lapse of time. Every case must be considered on its own merits. And just as the Permanent Court of International J ustice, in delivering its advisory opinion of August 26, 1933, concerning the Free City of Danzig and the International Labour Organization, attributed binding force to a practice which had lasted for only ten years™* — and the period was one of peace —, so desuetudo, the process of the formation of which is identical with that of consuetudo, may render a treaty inapplicable within a relatively short period. Such instances may arise in particular after. a war or an international crisis and the consequent change of political and spiritual values. The question of the survival of the international regime of the minorities protection was raised in one of the most tur112.

L. H. Woolsey,

vol, 20, Washington,

113. 114.

The

1926,

Unilateral pp.

Termination

349-350.

McNair, op. cit., p. 465. P.C.IJ., Series B., No. 18, pp. 12-13.

of Treaties,

A.J.L.L.,

MINORITIES

AND

THE

CLAUSULA

129

bulent and disturbed periods in human history: after a war that had shaken the foundations of civilization, that had reshaped the map of the world, that had led to tremendous population transfers and had given rise to the formation of new approaches to international life. We are, therefore, inclined to the opinion that the disappearance of the minorities system after the Second World War is one of the rare cases in which international obligations have lapsed per desuetudinem.*** We even believe that the minorities provisions were regarded as extinct not only at the Paris Peace Conference of 1946, but already at the San Francisco Conference of AprilJune 1945. Indeed, it is more than surprising that at this Conference which was charged with framing a constitution for the new world and which sought to base the future legal order on respect for human rights and fundamental freedoms, the delegates of all States represented were entirely oblivious of the very existence of the minorities treaties and declarations, as though these instruments were a dead letter. Not a single delegate found it necessary to mention or allude to the League minorities system during the entire length of the protracted deliberations on human rights." Surely the minorities system 115.

In examining

still valid,

Professor

the question Guggenheim

whether merely

the minorities

points

out

that

treaties the

answer

are is

to be found in the Secretariat’s Study, thus apparently adopting its conclusions (Traité de Droit International, vol. I, p. 292). It should be noted, however, that in his previous lectures at the Hague Academy of International

Law

a year

previously,

he rightly

considered

the mino-

rities stipulations as being an illustration of “les régles qui font une rapide apparition dans l’ordre juridique international, qui ont une tendance 8 devenir universelles, 4 se transformer d’usage local ou régional en

coutume

universelle

traité général, mais suite en désuétude” 116.

Even

ou

de

in the two

instances

to the protection of minorities, tally ignored.

of Chapter tioned the minorities” man rights

convention

bilatérale

ou

qui n’arrivent pas 8 se maintenir (R.A.D.I., vol. 80, pp. 40, 47).

Commenting

on

in which

casual

II of the draft Charter, the necessity of intervening in where “the clear violation constitutes in itself a threat

en

et tombent

en-

reference

the previous minorities an Australian

plurilatérale

amendment

was

made

treaties were to Paragraph

to8

French Delegation merely menfavour of “certain unfortunate of essential liberties and of hucapable of compromising peace”

(Documents of the United Nations Conference on International Organization, San Francisco, 1945, vol. 6, New York, 1945, p. 498). All that the Delegation of Panama proposed was the establishment of an International Educational Office "6600566 to stimulating and coordinating such studies as may promote better understanding and rapprochement among nations and cultural, technical and religious groups on all teach-

ing levels...”

(ibid., vol. 10, p. 327).

130

N. FEINBERG

was designed not only to insure “special rights” and “positive services” to “nationals who belong to racial, religious or linguistic minorities”, but also to guarantee basic human rights (“complete protection of life and liberty” and “free exercise... of any creed, religion or belief”) to “all inhabitants”, and “equality before the law” and “enjoyment of civil and political rights” to “all nationals”. And it is irrelevant from the point of view of the question under discussion that the rights granted to “inhabitants”

and to “nationals”, so far as they did not

affect persons belonging to minorities, were not recognized as constituting obligations of international concern and were not placed under the guarantee of the League of Nations. The attitude of disregarding the minorities system is. also in evidence in the discussions which took place and in the resolutions adopted at various conferences convened subsequently to the San Francisco Conference, as well as in the activities undertaken by the United Nations with regard to minorities. The same is true of the deliberations of the SubCommission on Prevention of Discrimination and Protection of Minorities and of the Human Rights Commission, and of the memoranda prepared on the subject by the SecretaryGeneral. True, at the 34th meeting of the Social Committee of the Economic and Social Council, held on February 20, 1948, when the question of requesting the Secretary-General to prepare the Study was under discussion, the British representative stressed that his acceptance of the proposed study “must not

be regarded as implying any doubts as to the validity of the treaties relating to international obligations undertaken to combat discrimination and protect minorities”.17 A similar statement was made by the British representative about three weeks later, at the 159th meeting of the Economic and Social Council. 535 But too much importance need not be attached to those statements which were made ten years ago, because, throughout the discussions of the minorities problem both before and after the statements, the British representatives were completely silent on the matter. 117.

U.N.Doc.

118.

United

Third Year:

E/AC.7/SR.34,

Nations,

Economic

Sixth Session,

20 February and

2 February

Social

—

1948, p. 2. Council,

11 March

Official

Records,

1948, p. 309.

MINORITIES AND rile CLAUSULA

131

It should be pointed out in conclusion that this article was concerned only with the analysis of the legal grounds for the extinction of the international minorities regime. The question whether the extinction of that regime is desirable or not

was outside the scope of our investigation.

LES

COMMUN

INTERNE

ET LE DROIT LapipotH

Rutu

INTERNATIONAL

DROIT

LE

ENTRE

RAPPORTS

EN

ISRAEL*

(Eschelbacher)

INTRODUCTION

Les problémes soulevés par les rapports entre le droit international public et le droit interne n’ont été étudiés systématiquement que depuis la fin du 19ème siècle. Jusqu’en 1899, rares sont les auteurs qui ont envisagé cet aspect du droit public, et ce n’est que depuis cette époque que se sont multipliés les travaux de recherches dans ce domaine. De méme, sur le plan de la pratique constitutionnelle des Etats on ne trouve en général de dispositions concernant les relations entre le systéme international et le systéme interne que dans des constitutions assez récentes ?. D'où vient ce nouvel intérêt pour ces questions? Il semble qu’il ait son origine dans l’intensification des relations internationales, devenues plus nombreuses, plus étroites et plus techniques. La réglementation internationale pénètre sans cesse plus avant dans la vie propre de chaque Etat et même de chaque individu. Aussi semble-t-il qu'ont joué un rôle important dans le développement de cette branche du droit les profonds bouleversements qui ont marqué l’histoire de ces trente dernières années, et qui ont fait naître au sein des Etats la conscience de leur interdépendance. La doctrine a examiné notre problème sous deux angles: a. Du point de vue théorique. Ainsi sont nées les grandes doctrines sur les rapports de systéme entre le droit international public et le droit interne:

la doctrine dualiste

(défen-

* Le présent article est basé sur la thèse de doctorat de l’auteur. 1. siécle,

Pour v.:

quelques

indications

Triepel,

Droit

trad. française _ 2.

Pour

international

des

par Brunet, indications

et droit

sur l’étude du problème

international

Paris

et

droit

avant

interne,

le 20ème

Leipzig,

1899,

1920, p. 3-6.

historiques,

constitutionnel,

v.:

R.A.D.I.

Mirkine-Guetzévitch, 1931(4),

p. 307.

Droit

DROIT

INTERNATIONAL

ET

DROIT

INTERNE

133

due surtout par MM. Triepel*, Anzilotti‘, Strupp’, Walz°, et Oppenheim’), et la doctrine moniste (représentée surtout par et Kunz”) ™. MM. Kelsen*, Scelle®, Verdross*, Bourquin 8. 08186

Triepel, — Vôlkerrecht und par Brunet, Paris, 1920;

Landesrecht,

Leipzig,

1899,

trad.

fran-

— Les rapports entre le droit interne et le droit international, R.A.DI. 1923, p. 77. 0 Anzilotti, — Il diritto internazionale nei giudizi interni, Bologne,

1905;

— Corso di diritto internazionale, trad. française par Gidel, Paris, 1929. 5.

Strupp,

p. 259-595, 6. —

—

Les

règles

sp. p. 389

du

troisième

droit

de

la

édition

paix,

révisée,

R.ADJI.

1928,

1934(1),

et suiv.

Walz, — Vôülkerrecht und staatliches Recht, Stuttgart, 1933; Les rapports du droit international et du droit interne, R.A.D.1.

1937(3),

p. 379 et suiv.

7. Oppenheim, — International Law, A Treatise, 2nd edition, 1912, vol, 1, p. 25 et suiv. 8. Kelsen, — Das Problem der Souveränität und die Theorie des Volkerrechts, Tiibingen, 1920 (sp. p. 120 et suiv.); — Hauptprobleme der Staatsrechtslehre, Tübingen, 1911; — Les rapports de système entre le droit interne et le droit inter-

national, R.A.D.I. 1926(4), .‫כ‬‎ 231 et suiv.; — General Theory of Law and State, p. 363

— La R.G.D.LP. —

Zur

la théorie 9.

Cambridge

(U.S.A.),

1945,

et suiv.;

transformation du 1936, p. 5 et 70; Lehre

vom

du droit,

Scelle, —

Primat

1938,

Précis

droit des

international, en

Volkerrechts,

Revue

droit

interne,

internationale

de

p. 211-216.

de droit des gens, principes et systématique,

Paris,

1932-1934; — berg,

_

Droit constitutionnel international, Paris, 1933, p. 513 et suiv.;

De

Pinconstitutionnalité

interne

dans:

des

Mélanges

Carré

traités, Revue

du

de Mal-

droit

pu-

‎‫ סומ‬et de la science politique en France età l'étranger, 1952, p. 1012 et suiv. 10. Verdross, — Die Einheit des rechtlichen Weltbildes auf Grundlage der Volkerrechtsverfassung, Tübingen, 1923; — Droit international public et droit interne, Revue de droit inter-

national, de sciences

diplomatiques

et politiques, 1954, p. 219-230.

11. Bourquin — Règles générales du droit de la paix, R.A.D.I, 1931 (1), p. 1-282 (sp. p. 135 et suiv.). 12. Kunz, — Landesrecht und Volkerrecht, dans le Worterbuch des

Vélkerrechts und der Diplomatie de Strupp, 1925, tome ler, p. 787; — La primauté du droit des gens, R.D.I.L.C. 1925, p. 556. 13. Pour une doctrine soi-disant trialiste, v. Scrimali, 1260 60 d’un troisième droit intermédiaire entre le droit interne et le droit inter-

national, R.D.L.L.C. 1939, p. 339 et .‫פטנט‬‎ Le Prof. Guggenheim, autrefois partisan

d’un

droit

universel

qui ré-

girait les rapports entre le droit international public et le droit interne (v. Revue internationale de la théorie du droit, 1935, p. 90), semble s’étre

rallié aux

monistes

qui accordent

la suprématie

v. Guggenheim, Traité de droit international ler, p. 24-25. Le Prof. Reuter dénie une valeur absolue

au er

public,

international;

Genève,

à la distinction

1953, entre

tome mo-

134

R. LAPIDOTH

entre les b. Du point de vue pratique: 16006 des rapports de leurs et *, le ationa intern ue deux systémes dans la pratiq ents différ des e intern que relations dans la pratique juridi Ktats*. avis différents stades nisme et dualisme, ces théories traduisant à son Institutions interde l’évolution des rapports internationaux; v. Reuter, nationales, Paris, 1955, p. 75. t les rapports Le Prof, Rousseau estime que “la controverse touchan entre

ordres

les deux

d'école, d'autant

41,

‫םי‬

Briggs,

The

—

the Supremacy

and

Practice

Notes,

and

Documents

Cases

of Nations,

Law

York, 1952, p. 60 et suiv. Morgenstern, — Judicial

absopublic

international

Droit

Rousseau,

discussion

de manière

positive ne confirme

v.

des deux thèses”; Paris, 1958.

lue aucune approfondi,

qu’une

chose

autre

pas

n’est

juridiques

que la pratique

New-

4 of International

Law, B.Y.IL. 1950, p. 42. Jenks, — The Interpretation and Application of Municipal Law

by the

Permanent Court of International Justice, 13. 1.1. 1938, p. 67. Draft on the Law of — Harvard Research in International Law: Responsibility (1929), §2; — Draft on the Law of Treaties (1935), §23. tome Rousseau, — Principes généraux du droit international public,

ler, Paris, —

Vordre

De

1944,

p. 71-72;

international,

nationaux

418-419.

R.G.D.I.P.

et lois internes,

juridiques

normes

des

compatibilité

la

p.

1932,

133-192,

contradictoires

sp.

Traité

dans

inter-

p. 146-148.

Mestre, — Les 1700168 et le droit interne, R.A.D.I. 1931(4), p. 233-306, sp. p. 277-276. Castberg, — L’excès de pouvoir dans la justice internationale, R.A.D.I. 1931(1), p. 357-472, sp. p. 359-399. Kopelmanas,

—

Du

conflit

entre

le traité

international

et la loi in-

terne, R.D.I.L.C. 1937, p. 88-143 et 310-361, sp. §2: Les solutions internationales du conflit entre le traité et la loi, p. 112-143. 150V, p.ex: Donnedieu de Vabres, — La constitution de 1946 et le droit international, Dalloz 1948 Chronique p. 6. Niboyet, — La législation des loyers en France: le droit constitutionmel et le droit international, Revue de droit international privé 1929, p. 592-609. — La constitution nouvelle et certaines dispositions de droit international, Dalloz hebd. déc. 1946, p. 89-90. De Lapradelle, — Note, Revue de droit international privé 1927, p. 5257, sp.

$3:

Combinaison

de

la loi et du

Rousseau, — Principes généraux 1944, tome 1er, p. 410 et suiv.;

traité,

du droit

p. 55-57.

international

= Les données de la jurisprudence française touchant national public (Cours professé à l'Institut des Hautes

public,

Paris

au droit interEtudes Inter-

nationales de l’Université de Paris, 1954-1955). Kopelmanas, — Note, Recueil De Lapradelle 1936, p. 85. Mestre, — Les traités et le droit interne, R.A.D.I. 1931(4), p. 233-306. _Basdevant, — Le rôle du juge national dans l'interprétation des traités diplomatiques,

Revue

critique

de droit

international

privé,

1949,

p. 413.

De Naurois, — Les traités internationaux devant les juridictions internes, Paris, 1934, Preuss, — The Relation of International Law to Internal Law in the French Constitutional System, A.J.IL. 1950, p. 641.

DROIT

INTERNATIONAL

ET

DROIT

INTERNE

133

C’est sous ce dernier aspect que nous nous proposons d’étudier la situation du droit international en Israél. L’Etat d'Israël est né en 1948. Depuis sa naissance et même avant son établissement, des organismes internationaux ont joué un grand rôle dans sa vie juridique et politique, et de Picciotto,

—

The

Relation

land and of the United Westlake,

—

Is

of

International

Law

L.Q.R. 1906, p. 14 et suiv. Brierly, — International Law MeNair,

prudence

—

International

States, London,

L'application

britannique,

a

Part

in England,

to the Law

1933(1),

of the

L.Q.R.

et l'interprétation

R.A.D.I.

Law

of Eng-

1915. Law

of England?

1935, p. 24-35.

des traités

d’après

la juris-

p. 247;

— . The Law of Treaties, British Practice and Opinions, Oxford Holdsworth, — Relation of English Law to International Law,

nesota

Law

Review,

Lauterpacht,

Transactions Lefébure,

—

1942, p. 141.

Is International

of the Grotius —

The

1938. Min-

Law

a Part

of the Law

Society 1939, tome

Application

of

International

Courts, Zeitschrift fiir ausländisches 1956/57, p. 568-612.

of England?

25, 1940, p. 51-88. Law

ôffentliches

Recht

in

the

English

und Vôlkerrecht,

Dickinson, — L/’interprétation et Vapplication du droit international dans les pays anglo-américains, R.A.D.I. 1932(2), p. 305-395; — Changing Concepts and the Doctrine of Incorporation, A.J.IL.

1932, —

p. 239-260; The Law of Nations

as Part of the National

Law

of the United

States, University of Pennsylvania Law Review, 1952, p. 26 et 792. Sprout, — Theories as to the Applicability of International Law in the

Federal

Courts

Wright,

Law

—

of the United The

in the United

—

Conflicts

of International

Law

through

Municipal

1915;

with National

Law

Separation

and

Ordinances,

of Powers

in U.S.A.,

The Constitutionality of Treaties, A.J.I.L. 1919. p. 242; International Law in its Relation to Constitutional Law,

Van

Panhuys,

A.J.I.L.

1953,

Bauer, fend die

—

The

Netherlands

van

juridique

Constitution

in the United States, and International

Law,

1957/58, p. 137-155.

international,

gaat

La

voor

wet

ook

constitution

Annales

de

droit

in nationale

belge

rechts-

et l’évolution

et de science

de

politique,

/

The

1952, p. 641. Münch, —

—

der Meersch,

1952, p. 418. —

Law

— Die niederländische Verfassungstinderung von 1956 betrefauswärtige Gewalt, Zeitschrift für ausländisches ôffentliches

Van der Zanden, — Vertrag betrekkingen, Zwolle, 1952.

Ganshof

and National

A.J.IL.

p. 537-538.

Recht und Vôlkerrecht,

Rice,

Law

Constitutional

1923, p. 234. Potter, — International Law AJ.LL, 1925, .‫כ‬‎ 315 et suiv.

Vordre

1932, p. 280-295.

of International

States, thése Illinois

AJ Abs 1917... 43 — Treaties and the A. JIL. 1918, p. 64; — —

States, A.J.I.L.

Enforcement

Position

of International

Droit international

Treaties

et droit interne

in Swiss

d’après

Law,

A.J.1.L.

la Constitution

de Bonne, Revue internationale française du droit des gens, 1950, p. 3; Staatsverfassungen und Friedenspolitik, Die Friedens-Warte, 1950/ —

51, p. 346-356.

DOTH R. LAPIDO

136

graves problèmes de droit des gens*® se sont posés au jeune Etat, sur le plan international comme sur le plan interne. Il semble intéressant d'examiner la position du droit international dans le droit interne israélien. La présente étude, bornée à l'examen de Vapplicabilité du droit international public coutumier par les tribunaux israéliens, sera fondée surtout sur la jurisprudence israélienne, puisque, d’une part, la législation est muette a ce sujet, et que, d’autre part, les études doctrinales consacrées à la matière jusqu'ici n’ont fait qu’effleurer 16 Bien que la jurisprudence israélienne soit très jeune, on y trouve déjà un nombre considérable de décisions touchant au droit international public, comme par exemple en matière de succession d'Etats, des effets de la guerre, de l’immunité de juridiction des Etats et de leurs agents, du statut des navires et des aéronefs, etc. A défaut de dispositions constituPreuss,

American

—

International

in the Constitutions

Law

Zone of Germany.

A.J.I.L.

of the Lander

im the

1947, p. 888.

Constantopoulos, — The Relation of the Law of Nations to Constitutional Law and the New Constitutions of Germany, Revue Hellénique de droit international, 1952. Tarazi, — La supériorité du traité sur la loi dans la nouvelle constitution syrienne, Revue de droit international pour le Moyen-Orient, 1954,

. 176. . Melen, — Le droit des gens bourg, 1945.

et le système

du droit polonais,

thèse

Fri-

Masters, — International Law in National Courts, New-York, 1932. Deener, — International Law Provisions in Post-World-War 2 Cons-

titutions, Cornell P. de Visscher

dernes, R.A.D.I. 16.

“droit 17.

Law Quarterly 1951, p. 505. — Les tendances internationales

1952(1),

L'expression

“droit

des

constitutions

mo-

p. 511. des

gens”

international public”. Pour quelques indications,

est

employée

comme

synonyme

de

v.:

Rosenne, — Le droit international et le droit interne de l'Etat d'Israël, Hapraklit 1950, p. 258 et s. — en hébreu; Malchi — Le droit international public devant les tribunaux en Israél, Réflexions internationales 1953, fascicule 13, p. 3 — en hébreu; — Le droit international public en Israël (introduction à la traduc-

‎‫ ו‬hébraique de Brierly, The Law of Nations, Tel-Aviv, 1953), — en reu; Silbiger, — L’administration avant Vétablissement de VEtat, dans: Recueil de cours sur l'administration en Israël, 1954, p. 18 et s, — en hébreu; Zadok, — Les sources du droit en vigueur en Israél, ibid., p. 154 et S. — en hébreu. International Law and the Municipal Law of Israel, Circulaire no. 72 du Conseiller juridique du Ministère des affaires étrangères, 1953,

préparée pour 1’U.N.E.S.C.O. Klinghoffer, — Droit administratif, 78 — en hébreu,

tome

ler, Jérusalem,

1957,

p. 77-

DROIT

INTERNATIONAL

ET

DROIT

INTERNE

137

tionnelles ou législatives, les juges ont résolu le probléme des rapports entre le droit international public et le droit interne d'une manière empirique,

au fur et à mesure

des cas concrets

qui exigeaient une prise de position de leur part. Il n’est donc pas surprenant que les tribunaux n'aient pas élaboré une doctrine précise sur l’applicabilité du droit des gens. Nous essaierons d'examiner les décisions israéliennes et d’en dégager

un ensemble de règles formant un système cohérent. Nous étudierons successivement — 1. Le système de l'adoption globale et automatique du droit international public coutumier; 2. Le problème des conflits entre la norme internationale et la règle interne; 3. Le problème des juridictions religieuses. CHAPITRE LE

SYSTEME

Les

I

DE L'ADOPTION GLOBALE ET AUTOMATIQUE DROIT INTERNATIONAL PUBLIC

tribunaux

à la tradition

conformément

israéliens,

DU

de

la plupart des Etats 610111868'*, n’hésitent pas à appliquer les règles du droit des gens quand se pose une question relevant de ce domaine”. Nous examinerons l'application du droit 18. V. p. ex.: la Constitution italienne (1948) la Constitution des Philippines (1935) $ 11; la la la la la

Constitution Constitution Constitution Constitution Constitution

autrichienne (1920) $ 9; (1919) $ 4; allemande de Weimar de la République fédérale allemande esthonienne (1920) $ 4; de la Corée du Sud (1948) $ 7.

P. de Visscher,

V. aussi:

$ 10;

tendances

Les

(1949)

internationales

$ 25;

des Constitu-

(sp. p. 521-533); LauterR.A.D.I. 1952(1), p. 511-576 tions modernes, pacht, Is International Law a Part of the Law of England? Transactions of the Grotius Society 1939, tome 25, 1940, p. 51-88; Donnedieu de Va-

bres,

La

Constitution

de

1946

et

le droit

international,

Dalloz

1948,

Chronique, p. 6; Masters, International Law in National Courts, NewYork, 1932; Westlake, Is International Law a Part of the Law of Eng-

land?

L.Q.R.

1906,

p.

14-26;

Brierly,

International

Law

in

L.Q.R. 1935, p. 24-35; Picciotto, The Relation of International the Law of England and of the United States, London, 1915;

of International Law

The Relation

to Internal Law

England,

Law to Preuss,

in the French Consti-

of tutional System, A.J.1.L. 1950, p. 641-669; Lefébure, The Application International Law in the English Courts, Zeitschrift für ausländisches üffentliches Recht und Vôlkerrecht 1956/57, p. 568-612 (sp. p. 569-575). Comme il n’y a pas de traduction frangaise des jugements israé19.

liens, nous fait

résumerons

allusion.

trés briévement

les décisions

auxquelles

il sera

138

R.

LAPIDOTH

des gens par les tribunaux israéliens, les exceptions 4 la doctrine de l’incorporation, la nature des règles applicables, et le fondement juridique du principe d’adoption. Section 1: L’APPLICATION

DU

DROIT

DES

GENS

PAR

LES

TRIBUNAUX

ISRAELIENS. A.

En

matière

de

succession

8.

Les tribunaux israéliens ont reconnu qu’en cas de changement de souveraineté il y a continuité de compétence en matière 816‫מ‬6‎ 5. C’est ainsi qu’ils se sont reconnus compétents, en se référant notamment au droit des gens, pour juger un délinquant pour un acte commis avant l’établissement de l'Etat sur le territoire actuel d'Israël. B.

Appréciation d’actes d'indépendance.

accomplis

pendant

la

guerre

Les tribunaux ont fait appel aux règles du droit international pour examiner la validité d’actes accomplis pendant la guerre d'indépendance par les forces armées. Dans l'arrêt App.Cr.Jm.5/50*% par exemple, l'appelant, accusé d’être en possession d’une voiture que des indices autorisaient à présumer volée??, essaya d'établir son droit à la propriété du véhicule en prouvant qu'il l’avait acheté à un groupe armé qui, lui, l'avait confisqué au cours d'opérations militaires. Le tribunal, ayant examiné la validité de la confiscation d’après le droit des gens, la jugea illégale. De même, la Cour Suprême s’est prononcée sur la validité de lois concernant une zone occupée 55. La Cour a estimé que l’extension à la zone occupée de l’Ordonnance sur les secrets d'Etat était conforme à la quatrième Convention de la Haye, ainsi que sa mise en oeuvre par un acte législatif émanant 20. App. Cr. 3/48, P.S.C. tome 2, p. 216 (surtout à la p. 225 et s.); A.D. 1949, case no. 26, p. 68. App. Cr. 65/49, .‫כ‬‎ tome 4, p. 75 (surtout à la p. 80-81); A.D. 1949, p. 70.

App. Cr. 147/51, P.D. tome 6, p. 412 (surtout à la p. 414); A.D. 1949,

‎‫ד‬ 21. App.

22,

‫ לשל‬App.

p.

Cr.

Jm.

5/50,

P.D.C.

tome

4, p. 441;

Article 311 du Code pénal de 1936. 1‫‏‬

Cr. 1/48,

P. tome

1, p. 513

(surtout

A.D.

1952,

p. 533-534);

p. 554-555. A.D.

1948,‫‏‬

DROIT

INTERNATIONAL

ET

DROIT

INTERNE

139

des autorités civiles de l’occupant (et non pas du commandement militaire). Tl est intéressant de remarquer que la Cour a pris en considération ici un argument basé sur la Convention de la Haye à laquelle Israël n’était pas partie à cette époque. De même, dans une autre espèce ** la Convention fut invoquée, sans discussion, comme déterminant l'étendue des pouvoirs du commandement militaire. La raison en est probablement que les Conventions de la Haye de 1899-1907 sont censées codifier le droit international coutumier tel qu’il existe indépendamment d’elles*°; ces règles lient donc Israël en tant que normes du droit international commun.

Problèmes d’immunité de juridiction et d'exécution en faveur d'Etats étrangers et de leurs agents. Les tribunaux ont admis le principe de l’immunité des Etats et des gouvernements étrangers. Ainsi, c'est en se fondant entre autres sur le principe de l’immunité, que, de manière assez paradoxale, la Cour Suprême conclut à l'efficacité de décrets israéliens confisquant des titres déposés à l'étranger *. Le même principe a été invoqué pour soustraire le Consul général et le Consulat général de Belgique à J érusalem, en tant que départements d’un gouvernement étranger, à une action en dommages-intérêts; le procès avait été intenté par la veuve et les enfants d’une personne décédée dans un accident causé par le chauffeur du Consulat *. Il est du plus haut intérêt de lire la décision rendue au cours de l'exécution du jugement, concernant 16 refus de la

C.

H. C. 22/49, P.S.C.

24. Pour

P.D.

les pouvoirs

tome

le droit

5, p. 1117

international,

du

tome

5, p. 209; A.D. 1949, p. 464.

commandement

(sp. p. 1121)

mais

militaire,

v.

aussi

pas

qui ne mentionne

s’y conforme

H.

CG

279/51,

P.D.

tome

6, p. 945

C.

64/51,

néanmoins.

25. Ce qui a été confirmé par le Tribunal de Nüremberg de Tokyo (v. Oppenheim-Lauterpacht, International Law, 76 édition, tome 2, 1952, p. 234-235). 26.

H.

expressément

(surtout

p.

992);

et par celui A Treatise, A.D.

1952,

à la confiscation en p. 229-254. En l’espéce les demandeurs s’opposérent 8 statué avoir pouvait ne ur législate le que autres, allégant, entre étant inefficace. de titres se trouvant à l'étranger, une telle mesure la confiscation L’argument fut rejeté par la Cour, celle-ci estimant que pourrait, à son était efficace, du fait que le Gouvernement israélien être traduit en tour, invoquer le principe de limmunité s'il venait à ces mêmes titres. justice devant un tribunal étranger en restitution de 27. Civ. Jm. 208/52, A.D, 1953, p. 397-400.

140

R. LAPIDOTH

police de procéder à l’arrestation du chauffeur dans l’enceinte du Consulat *. En invoquant les règles du droit international, le tribunal estima que, à défaut de convention, le Consul ne pouvait interdire à la police de procéder à une arrestation dans les locaux du Consulat, et que les agents de la force publique avaient le droit et le cas échéant le devoir de pénétrer dans les bâtiments pour opérer l'arrestation. Dans la même espèce fut rendue aussi une décision concernant l’immunité de juridiction des agents diplomatiques *. Le juge, tout en affirmant que les règles du droit des gens en la matière sont applicables en Israël, dénia à l'agent diplomatique en question et à son employé l’immunité de juridiction, la reconnaissance du Consul général comme agent diplomatique par l'Etat d'Israël n’ayant pas été établie *, D.

Statut de navires et d’aéronefs. La jurisprudence a déterminé, à propos d’une espèce récente, Sa compétence, à raison de délits commis à bord de navires israéliens en haute mer, en invoquant entre autres les règles du droit international public. Il s'agissait en l’espéce d’une accusation d’homicide par imprudence portée contre le second d’un navire. Tout en rejetant la théorie de |’ “île flottante”, la Cour se reconnut compétente pour connaître du délit, en vertu d’un principe du droit des gens, et de certaines dispositions du droit interne *. La question du statut des aéronefs s’est posée dans des circonstances curieuses *. L’inculpé avait déchargé des conx

28. 29. 30.

Exécution Jm. 157/53, P.D.C. tome 9, p. 502; A.D. 1953, p. 400-405. Civ. Jm. 208/52, P.D.C. tome 8, p. 455; A.D. 1953, p. 391-397. En 1682666, l’avis du Ministère des affaires étrangéres, produit

sur demande du tribunal, manquait de clarté. V. sur ce point: Lrattestation du Ministère des affaires étrangères, Hapraklit p. 33-49 — en hébreu.

31.

App.

Cr. 174/54,

P.D.

tome

Rosenne, 1954-55,

10, p. 5-40. A la suite de cet arrét,

un amendement fut introduit à l’Ordonnance de 1948 sur l'étendue des compétences et des pouvoirs de juridiction, assimilant tout navire et tout aéronef immatriculé en Israël au territoir e de l'Etat, aux fins de la compétence juridictionnelle des tribunaux (Recueil des lois 5716

(1956), p. 34). 32. V. toutefois tence du tribunal V. infra,

p. 145.

33. App. p. 153-156.

Cr.

l'opinion du Conseiller uniquement sur des TA,

303/52,

P.D.C.

Goitein qui fonde la compédispositions d'ordre interne;

tome

9,

p

75-84;

A.D.

1953,

DROIT

INTERNATIONAL

ET

DROIT

INTERNE

141

serves de viande d’un avion sud-africain faisant escale sur un aérodrome israélien. Accusé de contrebande, il plaida que c'était le pilote qui avait commis le délit en atterrissant sur le sol israélien, à quoi le représentant du Ministère public répliqua que le seul transport de marchandises par avion ne constitue pas importation de ces marchandises, étant donné que l’aéronef lui-même demeure territoire étranger. L’argument du représentant du Ministère public fut rejeté, le tribunal ayant constaté qu’en droit international un avion étranger faisant escale en Israël ne fait pas partie du territoire étranger **. E.

Questions

de nationalité.

L'Etat d'Israël fut établi en 1948, tandis que la loi sur la nationalité ne vit le jour qu’en 1952 %. Y avait-il des ressortissants israéliens entre ces deux dates ? Telle fut la question qui se posait au juge dans Civ.T.A.778/50 et 876/50 * car, dans les circonstances de la cause, la compétence du tribunal dépendait de la nationalité des parties. La question fut résolue par l’affirmatif en application des règles générales du droit international public. Aux termes du jugement — “.,.l’opinion qu’il n’y a pas de citoyens israéliens n’est pas conforme au droit international public.” Se basant

ensuite

sur

différents

auteurs

du droit

des gens,

le tribunal conclut que — “,,.Sauf disposition légale contraire, toute personne qui, à l'établissement de l'Etat était domiciliée sur le territoire qui constitue aujourd’hui l'Etat d'Israël, est considérée comme citoyen israélien...” * 34. avant

Remarquons que que les aéronefs

cette décision a été rendue immatriculés en Israël aient

quelques années été assimilés au

territoire d'Israël, aux fins de la compétence juridictionnelle des tri(v. supra, note 31). Toutefois, nous ne croyons pas que cette bunaux loi ait une influence directe sur le problème en question.

35. La loi sur la nationalité de 5712-1952 (Recueil des lois 5712 (1952), p. 146). 36. Civ. T.A. 778/50 et 876/50, P.D.C. tome 3, p. 263; A.D. 1950, p. 110-111.

(Succession Le tribunal de Tel-Aviv, dans un autre jugement 37. 110) T.A. 360/50, P.D.C. tome 3, p. 222, surtout p. 223; A.D. 1950, p. et la Cour Supréme (H. C. 174/52, P.D. tome 6, p. 897, surtout p. 901;

A.D.

1950

p. 112)

ont

soutenu

qu'il n’existait

pas

de nationalité

israé-

142

R.

LAPIDOTH

Dans un autre cas‘ le tribunal reconnut le droit d’un Etat de refuser l'octroi de sa nationalité à un étranger, en s’appuyant sur des citations d'ouvrages de droit international. Ayant ainsi examiné brièvement les principaux cas d’application de règles du droit international public par les tribunaux israéliens, il convient encore de citer quelques autres décisions qui nous semblent témoigner de l'importance accordée par les juges aux règles du droit des gens. A.

La courtoisie internationale. Dans un arrêt intéressant * la Cour Suprême a déclaré que la législation d’un Etat étranger était présumée conforme à l'usage international. Il s'agissait en l’espèce d’une déclaration assermentée

(‘“‘affidavit”)

effectuée

par-devant

le Consul

d'Israël en Argentine. Sa validité comme élément de preuve dans un procès civil en Israël dépendait, selon le Code de procédure israélien “, de sa conformité avec le droit argentin. Aucune preuve n'ayant été apportée des dispositions de ce droit, la Cour passa outre et déclara le document valable en vertu de la présomption: omnia rite et solemniter acta esse praesumuntur, et d'une seconde présomption, celle de la conformité du droit étranger applicable à la comitas gentium qui reconnaît le pouvoir des consuls de recevoir des déclarations sous serment. Il est peut-être intéressant de remarquer que même la minorité de la Cour, qui se déclara contre la validité du document en question, reconnut néanmoins que — “...les Consuls d'Israël ont des pouvoirs divers et nombreux, qui dérivent soit d’instructions qu’ils recoivent de temps en temps du Ministére des affaires étrangéres, soit de l’usage international reconnu dans tous les pays civilisés. #1 lienne avant le vote de la loi sur la nationalité en 1952, mais n'ont pas fait appel au droit international pour résoudre la question . 38. Tutelle T.A. 780/52, P.D.C. tome 9, p. 477, surtout p. 488-489. Ce jugement a été confirmé par la Cour Suprême dans App. Civ. 209/54, P.S.C. tome 18, p. 116. 39. App. Civ. 19/54, P.D. tome 8, p. 521, surtout p. 529; A.D. 1954, p. 250-253, 40. Civil Procedure Rules, 1938, article 2. 41. A la p. 527. Pour un examen de cet arrét, v. la note du Prof. Feinberg dans Hapraklit, tome 11, 1955, p. 97.

DROIT

INTERNATIONAL

ET

DROIT

INTERNE

143

B. Renvoi non réceptif *. _Lorsque s’est posée la question de savoir si la guerre d’indépendance de 1948 avait été une guerre entre Etats ou une guerre civile, la Cour Suprême se référa au droit international **. L’appelant avait été accusé de participation à une guerre civile

(“promoting

civil war’ “), en se plaçant du côté

des envahisseurs arabes. La Cour décida que la lutte de 19481949 ayant été une guerre entre Etats, et non pas une guerre civile, l'accusation n'était pas fondée. Tl nous semble que cet appel au droit international n’est pas une adoption de ses règles, mais un renvoi pour compléter une définition de droit interne. C.

Appréciation du caractère raisonnable d’une mesure interne selon sa conformité avec le droit des gens. Dans un arrêt retentissant ‘ la Cour Suprême a estimé la rétroactivité d’une loi pénale raisonnable parce que la loi ellemême était conforme au droit international. L’appelant, accusé d’actes d'espionnage au détriment de l'Etat d'Israël en contravention de la loi sur les secrets de l'Etat, plaidait que ladite loi ne pouvait étre rendue rétroactivement applicable à la zone de Jérusalem où ces actes auraient été commis. La Cour décida, d’une part, qu’elle était tenue d'appliquer rétroactivement les lois lorsque la volonté du législateur l’exigeait, et, d’autre part, que cette application en l'espèce n'était pas contraire à l'équité, l’espionnage étant un crime reconnu comme tel par le droit international *°. 42. Expression empruntée à Anzilotti, Cours de droit international juridique trad. française par Gidel, p. 59; ce qui équivaut à la “règle Blankette rezipierend (nicht réception” pas n’opérant g par blanc-sein

droit interne rechtssätze) de Triepel (v. Triepel, Les rapports entre le et le droit international, R.A.D.I. 1923 (1), .‫כ‬‎ 77 et s.) le droit interPour les renvois entre le droit interne d’une part et onales, Paris, national d’autre part, v. aussi Reuter, Institutions Internati

1955, p. 143. 43. App. Cr. 44/52, 1952, p. 550-554. 53(a)

du

P.D. Code

tome

6, p. 922

pénal

Article

45.

App. Cr. 1/48, P. tome 1, p. 513

(surtout p. 530-531);

p. 573.

46,

La Cour cita Oppenheim-Lauterpacht, 6e

édition,

Hyde,

International

p. 929 et s.); A.D.

1936.

de

44,

tise,

(surtout

Law

A.D. 1948,

International Law, A TreaChiefly

as

Interpreted

and

Applied by the United States; l'annexe à la 4e Convention de la Haye; g. le jugement du Tribunal militaire international de Niirember

144 D.

R. LAPIDOTH Mention de décisions internationales pour ajouter de la valeur morale à un arrêt d’ordre purement interne. x

Dans une affaire criminelle * un des Conseillers de la Cour, afin de justifier l'interprétation restrictive d’un article du Code pénal, invoqua, dans son opinion dissidente, un avis consultatif de la Cour Permanente de Justice Internationale. Une importante coopérative de transport avait été accusée de “préjudice causé au public” (“public mischief”) ** pour avoir suspendu la circulation de ses véhicules pendant quelques heures sans motif plausible. Le Conseiller Prof. Silberg préconisait une interprétation restrictive du Code, interprétation qui eût exclu la responsabilité

de la coopérative,

référa aux principes généraux la Cour Permanente

et dans ce but il se

du droit pénal et à l’avis de

de Justice Internationale

sur la compati-

bilité de certains décrets d’ordre pénal avec la Constitution de la ville libre de Dantzig ‘. Après quoi il ajoute: “... Evidemment je n’entends ce haut tribunal afin de nier 105. Je tenais seulement à supplémentaire à mon effort

pas invoquer la décision de la validité de notre article y trouver une justification de fixer des limites quelque

peu précises à la disposition imprécise de cet article... °°

Ce court aperçu méthodique de la jurisprudence israélienne nous permet de constater que les tribunaux appliquent en principe les règles du droit international quand se pose une question relevant de ce domaine. Mais il n’y a pas de règle sans exception, et ce sont les exceptions qu’il nous faut maintenant examiner. Section 2: LES EXCEPTIONS

4 LA DOCTRINE

DE L’INCORPORATION.

A notre connaissance il n’y a pas un seul cas où un tribunal israélien ait rendu un jugement en contradiction avec la doctrine d’adoption globale. Néanmoins, dans quelques dicta des Conseillers de la Cour Supréme nous trouvons des expressions qui pourraient mettre en doute le principe, soit qu’elles en 47.

App.

48.

Article

Cr. 53/54,

49. 50.

CP.JI. série A la p. 832.

P.D.

105 du Code

A/B,

tome pénal

no.

65.

8, p. 785-832. de 1936.

DROIT INTERNATIONAL ET DROIT INTERNE nient le bien-fondé portée.

méme,

soit

qu’elles

en

145

restreignent

la

§ 1— Négation de la doctrine de l’incorporation. Dans deux opinions on trouve des passages qui semblent contester l’applicabilité du droit des gens par les tribunaux internes: 1.

Dans

App.Cr.174/54 5

le Conseiller

Goitein,

donnant

son

opinion individuelle, se déclare expressément opposé au principe de l’incorporation: "... Sans doute la Knesseth peut, soit introduire dans le droit de l'Etat, par le moyen ordinaire d’un texte de loi, toute règle du droit international qu’elle jugerait opportune,

soit déclarer,

par

un

texte

unique

de portée

générale, que les principes du droit international feront désormais partie intégrante du droit de l'Etat. Mais jusqu'à ce jour, la Knesseth ne s’est pas engagée dans cette voie. Sous le régime du Mandat, le Gouvernement de la Palestine s'était de même abstenu de prendre une telle mesure (qui est à vrai dire adoptée de plus en plus par les Etats contemporains).

Ainsi, à mon

avis, nous n'avons

pas le droit de nous référer aux principes du droit international et à ses règles pour résoudre notre problème, et nous devons nous fonder uniquement sur les dispositions du droit national...” °? Cette opinion nous semble critiquable, non seulement parce après

venant

que,

une

longue

série

de décisions

confirmant

Vapplicabilité du droit des gens par les tribunaux internes, elle prétend infirmer cette pratique; mais surtout, parce qu’on la trouve sous la plume d’un Conseiller qui n’a pas hésité à fonder un autre arrêt sur une présomption de confor51.

App.

52.

A

Cr. 174/54,

la p. 33,

$ 23

tome

P.D. de

10, p. 5-40.

l'arrêt.

53. Il est peut-être intéressant de remarquer que M. Goitein a rédigé les motifs de l'arrêt 11. C. 287/51, P.D. tome 8, p. 494 (A.D. 1952, p. 254), qui avait établi définitivement le principe de la force obligatoire des précédents en Israël. (Ce principe a d’ailleurs été restreint par voir

33

l’article

Recueil

de

la loi tout

des lois 5717

l'effet.

V.

Dror,

(1957), Some

récente

Recent

Precedent in Israel, infra, p. 228. 54. App. Civ. 19/54, P.D. tome supra,

p. 142.

sur

les

tribunaux

p. 148, dont il est encore Developments

8, p. 521;

A.D.

of

de

5717-1957,

difficile de pré-

the

Doctrine

1954, .‫כ‬‎ ;250-253

of

.‫צץ‬

146

R. LAPIDOTH

mité d’une législation interne avec l’usage international. Et il nous semble que si on peut motiver un arrét en faisant appel à la courtoisie internationale, à plus forte raison les règles du droit des gens, comme droit positif, doivent-elles lier les juges. Il est vrai que, dans l’arrêt où le Conseiller a présumé une conformité avec la courtoisie internationale, il s’agissait

d’un droit interne étranger; mais nous ne croyons pas que ce fait ait influencé l’opinion du Conseiller sur le point en question. 2. De méme, nous trouvons un passage du Conseiller Prof. Silberg, dans App.Civ.28/52°°, qui pourrait sembler mettre implicitement en doute le principe de l’incorporation: "... Il n’y a point en droit international de principe reconnu qui obligerait un Etat occupant un territoire ou un Etat gagnant son indépendance a reconnaitre, par son droit interne, les actes de la puissance qui l’a précédé — y compris ceux qui conférent des droits aux particuliers — et méme si un tel principe existait, il serait douteux qu'il lie aussi, sur le plan du “droit interne”, les tribunaux de cet Etat...”

Quelle est la portée exacte de ce passage qui n’était du reste pas indispensable à l’argumentation du Conseiller? A première vue il peut sembler contraire au principe de l'adoption globale. A notre sens, toutefois, l’idée qui l’inspire est plutôt que l’incorporation n’est pas nécessairement imposée par le droit international, sans que cela porte atteinte à sa valeur comme règle de droit interne. Le passage cité témoigne donc, il est vrai, d’une conception dualiste, mais il n’exprime pas une attitude négative à l'égard du principe “International Law is Part of the Law of the Land”.

§ 2.— Restriction à la doctrine de Vincorporation. On trouve dans la jurisprudence israélienne quelques allusions à la possibilité de déroger aux règles du droit des gens quand les circonstances particulières à Israël l’exigent. A ce jour les tribunaux n’ont encore jamais refusé d’appliquer le droit international en arguant de l’inopportunité d’une de ses 55.

App.

Civ.

28/52,

P.D.

tome

9, p. 436, surtout

p. 444.

DROIT

INTERNATIONAL

ET DROIT

INTERNE

régles en Israél. Toutefois, on trouve des passages

147

qui pour-

raient étre interprétés comme permettant aux juges une telle dérogation. "... Et, pour terminer, une derniére et courte remarque ... Le problème avec lequel nous sommes aux prises n’est pas particulier à Israël... Chaque Etat qui naît — ou qui renaît — résout ces questions selon les nécessités

et dans la mesure

où les faits le lui permettent,

“culte des précédents”

et le

ne s'étend pas à ce domaine

du

droit. On a écrit une littérature considérable sur les conséquences juridiques des successions d'Etats, depuis Gentilis et Hugo Grotius aux 16ème et 17ème siècles jusqu’à Feilchenfeld et Kelsen au milieu du siècle présent, et il n'existe pas encore de “règles” mais seulement des “attitudes”, c'est à dire un faisceau de faits historiques qui nous informent de la maniére dont tel ou tel pays a résolu pratiquement le probléme qui se posait 8 lui. C’est pourquoi, revenant 4 la question soulevée ici, nous devons la juger non pas d’aprés des régles précises ou des précédents,

mais

en

considérant

les

faits

objectifs,

avec

toutes leurs contingences particuliéres, et tels qu’ils se sont déroulés, une fois dans l’histoire, lors de l’établissement de l'Etat d'Israël” © Ce passage invoque deux arguments qui permettraient de résoudre, sans référence au droit international, le problème posé à la Cour:

le défaut de règles internationales

en la ma-

tière et le devoir de tenir compte des circonstances particulières à Israël. Lequel des deux l’emporte? Si c’est l'absence. d’un principe international qui permet au juge de résoudre la question sans faire appel au droit des gens — le Conseiller n’a pas apporté de restriction à la doctrine de l’incorporatian. Mais si au contraire c’est l’unicité des circonstances dans lesquelles l'Etat d'Israël fut établi qui amène les tribunaux à trancher des litiges en tenant compte de ces circonstances, nous nous trouvons bien en face d’une restriction à l’applicabilité de la doctrine de l’adoption globale en Israël. Il serait donc permis de déroger aux règles du droit international si la situation particulière de l'Etat l’exigeait. 56.

Ibid., p. 447.

148

R. LAPIDOTH

Cette derniére interprétation, bien qu’elle n’ait encore jamais été appliquée 4 un cas concret, trouve un certain appui dans H.C.101/54°". Israël était-il en état de guerre avec le Liban? Tel était un des points dont dépendait la solution du litige. L'arrêt déclare à ce propos: “Comme en beaucoup d’autres domaines, Israël est un Etat de caractère particulier, et ne ressemble pas aux autres Etats en ce qui concerne ses relations avec ses voisins. Il est donc impossible de renforcer les arguments invoqués par des citations d’Oppenheim ou d’un autre traité sur le droit international...’ °* Ayant ainsi étudié le principe de l’incorporation du droit des gens au droit israélien et ses exceptions, il nous faut déterminer maintenant la nature des régles applicables en vertu de ce principe. Section 3: LA NATURE DES REGLES APPLICABLES. Pour comprendre l’attitude d’une jurisprudence à l'égard du droit international, il ne suffit pas d'examiner si elle applique ses principes quand se pose une question relevant de son domaine; il faut aussi préciser ce que les juges entendent par “droit international”. Quelles sont les règles qui entrent dans le cadre du droit incorporé au droit israélien? La Cour Suprême a adopté une définition des règles applicables °° qui s'inspire de la jurisprudence anglaise: "... Les tribunaux internes d’un Etat déterminé ne reconnaitront les règles du droit international et ne jugeront en conformité avec elles que si les autres peuples civilisés les ont acceptées, de sorte qu’on doit supposer que ces règles ont été acceptées aussi par cet Etat. Il faut donc prouver une règle du droit international par des preuves suffisantes qui confirment soit que 57. H. C. 101/54, P.D. tome 9, p. 135. 58. A la p. 139. % peste 41/49, P.S.C. tome 9, p. 16 (surtout p. 20); A.D. 1950, p. 72-79. 60. V. notamment: West Rand Central Gold Mining Co. Ltd. v. The King, [1905] 2 K.B: p. Is International Law p. 14-26); Commercial [1925] 1 K.B, p. 271;

391 (Pour une critique de cet arrêt, v. Westlake, a Part of the Law of England? L.Q.R. 1906, and Estates Co. of Egypt v. The Board of Trade, The Cristina [1938] A.C. p. 485.

DROIT INTERNATIONAL ET DROIT INTERNE

149

l'Etat l’a reconnue et s’y est conformé, soit que le carac-

tére de la régle ou le fait qu’elle est reconnue

par de

nombreux Etats entraînent la présomption qu'aucun Etat civilisé ne la répudierait. Quant à l'autorité de la doctrine, même celle des auteurs les plus éminents, elle ne suffit pas, en soi, à moins d'avoir été confirmée expressément par un accord international, ou à moins d’être devenue progressivement partie intégrante du droit international positif par sa consécration et son application répétées dans les rapports entre les nations..’’ L’énoncé de ce passage appelle des commentaires sur plusieurs points. $ 1—

L’universalité

du principe.

Un des reproches qu'on a pu faire à la doctrine anglosaxonne de l’incorporation est son exclusivité. Triepel y insiste pour démontrer que la pratique anglaise ne constitue pas une consécration de la doctrine moniste“. Il est donc intéressant de remarquer que cet avis de la Cour Suprême d'Israël est rédigé d’une manière si générale qu’il pourrait viser n'importe quel pays. En parlant des “tribunaux internes d’un Etat déterminé” les juges ont donné au principe qu’ils énoncaient un caractère général et universel. Bien que les décisions de cette instance n'aient de valeur positive qu’en Israël, il est intéressant de noter que les magistrats estiment la doctrine de l’incorporation susceptible et digne d’être appliquée aussi

dans d’autres pays.

|

§ 2.— Le caractère “national” des règles internationales applicables. Le passage précité sur la nature des règles applicables nous montre également qu’une règle internationale, pour être valable en droit interne, doit être reconnue par l'Etat, et cette reconnaissance doit être soit explicite, soit implicite. La reconnaissance explicite découle de la pratique internationale et interne de l'Etat; mais comme Israël est un Etat 61.

V.

Triepel,

par Brunet,

Paris

Droit

international

1920, p. 137.

et

droit

interne,

trad.

française

150

R. LAPIDOTH

très jeune, il n’a pas encore eu l’occasion d’accepter et de se conformer à une grande partie des règles du droit des gens. D'où la plus grande importance de la reconnaissance implicite. Il s’agit d’une présomption simple de reconnaissance, qui tient soit au fait que la régle en question est reconnue par de nombreux Etats, soit au caractére propre de la régle. De ces deux sources de la présomption, la seconde nous parait étre la plus intéressante, bien qu’assez imprécise. Quel caractère doit donc présenter une règle pour que la présomption joue en sa faveur? A défaut de jurisprudence sur la question, on ne peut qu’exprimer l’espoir que les juges parviendront ainsi à appliquer certaines normes équitables du droit international, encore qu’elles n'aient pas fait l’objet d’une approbation expresse de la part des Etats %. Bien que ces deux causes de la présomption de reconnaissance soient formulées alternativement,

il est douteux

qu’elles

soient complètement indépendantes l’une de l’autre. Ainsi, une fois désapprouvée par la majorité des autres Etats‘, la règle de droit ne pourra plus, semble-t-il, être présumée reconnue

par Israël en vertu de sa seule nature.

Par contre,

si

les autres Etats, ou la plupart d’entre eux, n’ont pas pris partie, la seule considération du caractère de la règle pourrait avoir d'importantes conséquences. A première

vue, cette pratique

est très “internationaliste”,

quisqu’elle permet aux juges d'appliquer des règles reconnues par les autres

Etats,

ou des principes

dont

le caractère

im-

pose l’applicabilité, sans que soit établie l’adhésion de leur propre Etat à ces principes. Mais, en fait, la doctrine est “nationaliste”, puisqu'elle repose en définitive sur une présomption de reconnaissance par l'Etat. La règle ne sera point appliquée à raison du fait qu’elle a été acceptée par la majo-

rité des Etats, mais uniquement parce que le juge peut, en tel cas, présumer que l'Etat dont il exerce la juridiction l’a, lui aussi, adoptée. Par l'effet de cette présomption, l’incorporation aura des conséquences très importantes, presque d’un 62. dune règle

Ceci pose =

la question

règle par les Etats du droit des gens,

de savoir

est

dans

nécessaire

à

quelle mesure son

l’acceptati on

existence

. pe

a

63. Dans un pareil cas on pourrait soutenir quequ la régle è en i question ne serait plus une régle du droit international public, . .

DROIT INTERNATIONAL ET DROIT INTERNE

151

caractère moniste, mais il ne faut pas oublier que la conception se trouvant à sa base est essentiellement “nationaliste” 5, $ 3.— Faut-il “prouver” une règle internationale dont on réclame l’application ? "... Il faut donc prouver une règle du droit international par des preuves suffisantes . . ." nous dit notre arrêt. N’y a-t-il pas 1a un contresens? Si le droit international fait partie intégrante du droit interne en vertu de la doctrine de l’incorporation, il est lui aussi soumis au principe de: jura novit curia, et il n’y a donc pas lieu d’exiger d’aucune des parties d’apporter

la preuve

de

son

contenu.

Ceci

serait

d’autant

plus

critiquable en Israël que, aux termes de l’Ordonnance sur Vinterprétation, le juge est censé connaître “la loi’’®; or, l’expression “loi” inclut la Common Law dans la mesure où celle-ci est en vigueur en Israél*, et, à son tour la Common Law comprend certaines régles du droit international public. Par conséquent, en Israél il n’est nécessaire de prouver ni Vexistence ni la teneur d’une norme juridique. Il n’en est autrement qu’à l'égard d’une 101 étrangère. Ainsi, la Cour, en soumettant, la nécessité

comme elle semble le faire, le droit des gens à d’une preuve, l’a-t-elle assimilé à une loi étran-

gère? Nous ne croyons pas que ¢’ait été là l'intention de l'arrêt ‘7. Il semble qu'il ait plutôt voulu définir les règles internationales valables

en droit

interne,

et établir un

critère de leur

applicabilité par les tribunaux. Il ne s’occupe donc pas du problème du fardeau de la preuve. Le droit international n’a 64. Pour un examen de la pratique anglaise à cet égard, v. Akzin, Les problèmes fondamentaux du droit international public, thèse Paris, 1929, p. 76-83. 65.

Article

nouvelle 66.

La

33 de l’'Ordonnance

rédaction, fascicule Common

Law

sur

l’interprétation

(Les

Lois

d’Israél,

ler, 1954, p. 1).

est, pour

une

large

part,

en

vigueur

en

Israél,

le législateur israélien ayant adopté, sous quelques réserves, le droit palestinien tel qu’il était en vigueur 8 la fin du Mandat (artice 11 de l’Ordonnance sur la loi et l’administration de 5708-1948, J.O. 5708 (1948), supplément A, p. 1); et le droit palestinien, 4 son tour, avait fait appel a la Common Law et aux principes de l’Equity, tions, à titre supplétif (article 46 de l’Ordonnance

tine de 1922, Drayton, infra, p. 155-156. 67. V. aussi raél, Hapraklit

The

Laws

of

Palestine,

Rosenne, Le droit international 1950, p. 258 — en hébreu.

sous certaines condiroyale pour la Pales-

tome

3, p.

2569).

et le droit de l’Etat

V.

WIs-

152

;: ds

APIDOTH

le statut ni d’un fait ni d’une loi étrangère, et sera appliqué d’une facon autonome et automatique par les juges, sans que les plaideurs aient à prouver son contenu. § 4.— Vérification de la règle applicable Comme la plus grande partie du droit international commun n’est pas encore codifiée, et que d’autre part les juges internes ne sont pas censés étre au fait de la pratique internationale, ils sont bien obligés de recourir aux travaux de la doctrine pour dégager les règles applicables. Mais le rédacteur de l'arrêt met les juges en garde contre les écrits des auteurs: de simples réflexions de lege ferenda ou des opinions non fondées dans la pratique ne pourront servir à étayer une règle positive. Les tribunaux ne doivent se référer qu'aux constatations de la doctrine basées sur la réalité de la vie internationale‘. Le fondement positif d’une règle peut provenir, selon l'arrêt, soit de son

incorporation

dans

un

accord

international,

soit

de son application dans la pratique. Nous allons étudier successivement ces deux facteurs. A.

Règle coutumière applicable parce que figurant dans un traité international. 11 semble

paradoxal

de se référer

au

droit

conventionnel

pour prouver le caractère positif d’une règle coutumière dégagée par la doctrine, vu que le principe de l’adoption globale

du droit international par le droit interne ne couvre que le droit commun et n’est pas valable pour le droit conventionnel ®. Comment peut-on donc fonder l’applicabilité d’une règle sur son caractère conventionnel? Il n’y a, semble-t-il,

qu’une

facon

d'éviter

un

tel contre-

sens: c’est d'interpréter ici l'expression “accord international” comme visant uniquement des conventions codifiant le droit international

commun,

telles que les Conventions

de la Haye

68. V. supra, p. 149. 69. V. mémorandum du Gouvernement israélien du 11 Mars 1951, Nations Unies ST/LEG/SER. B/3, p. 67-72 (surtout p. 71, no. 19); International Law and the Municipal Law of Israel, circulaire no. 72 du

Conseiller juridique du Ministère l'U.N.E.S.C.O., 1953, p. 6.

des affaires

étrangères,

préparée

pour

DROIT

INTERNATIONAL

ET

DROIT

INTERNE

153

de 1899-1907. Si l’on accepte cette interprétation, la disposition obscure du passage cité signifiera que les juges pourront prendre en considération des régles coutumiéres dégagées par la doctrine pour autant que ces régles figurent dans des traités internationaux portant codification du droit international commun, — ce qui est parfaitement logique et cohérent. B.

Règle coutumière applicable en droit interne qwappliquée dans la pratique internationale.

parce

Parmi les principes dégagés par la doctrine il en est d’autres encore que, d’après l’arrét que nous examinons, le juge israélien est autorisé 8 prendre en considération. Ce sont ceux ayant fait l'objet de “consécration et ... d’application répétées dans les rapports entre les nations”. En fait, la plupart des décisions de la jurisprudence touchant au droit des gens entrent dans le cadre de l’application de la coutume telle que la doctrine l’a dégagée de la pratique internationale. Mais il arrive souvent que la pratique ne soit pas uniforme et que les auteurs ne soient pas d’accord sur |’existence d’une régle ou sur son contenu exact; et les tribunaux israéliens ont été parfois dans l’impossibilité de trancher un litige sur la base du droit international 4 défaut d’une régle généralement reconnue. Nous citerons 4 présent trois cas d’espéces dans lesquels Jes juges ont dû renoncer à appliquer le droit des gens pour n'avoir pu découvrir une règle internationale Deux de ces généralement acceptée à l’aide de la doctrine. décisions traitent de questions de successions d'Etats; le | troisième de la territorialité des lois.

1. Dans un cas retentissant la Cour Suprême a débouté une société commerciale poursuivant le Gouvernement d'Israël en paiement d’une dette dûe par l'Administration de la Palestine®. Dans son arrêt la Cour se basa sur le désaccord régnant dans la doctrine quant à l’applicabilité des règles du droit international aux rapports entre un Etat et ses propres nationaux, et quant à la succession d’un Etat aux dettes en cas de substitution de souveraineté: * .. La société étant israélienne, ses rapports avec le Gouvernement israélien sont-ils régis par le droit inter70.

Requête

41/49, P.S.C. tome

9, p. 16; A.D, 1950, p. 72-79.

R. LAPIDOTH

154

national? Le droit international s’occupe-t-il de ces rapports? Il suffit de constater ici qu’il existe sur ce point des opinions selon lesquelles ces rapports ne sont pas du ressort du droit international... Il est vrai que certains auteurs traitent de questions semblables a celle-ci sous l’angle du droit international. Mais on peut remarquer que même d’après l’avis de ces auteurs il n'existe pas de règle précise et reconnue qui viendrait à l’appui de la prétention de la société selon laquelle l'Etat d'Israël succède aux dettes du Gouvernement de la Palestine...’ 2. Dans la deuxième espèce soulevant aussi un problème de la succession d'Etats il s'agissait de décider si l'Etat successeur acquiert les biens de son prédecesseur quittes et libres de toute charge, ou grevés des droits et servitudes auxquels ils avaient été soumis avant la substitution de souveraineté 5. Le

tribunal

déclare:

“... Je crois que nous devons nous référer aux règles du droit international pour résoudre ce problème... Je n’ai pas entendu d'arguments sur ce point de droit international et je n’ai pas moi-même effectué de recherches assez poussées pour pouvoir émettre un avis bien fondé sur la question de savoir s’il existe une règle générale et reconnue par tous selon laquelle les contrats relatifs aux biens d’un nouvel Etat conclus antérieurement à son établissement, obligent le nouvel Etat. Oppenheim (7ème édition, tome 1, p. 155 et 156), parlant des contrats en

général

et des

concessionsen particulier,

conclut à la non-

existence d’une règle reconnue en ce domaine. Cependant, Schwarzenberger, dans son Traité de droit international (2ème édition, tome 1, p. 83) estime quant à lui qu’une telle règle existe. Mais... la question n’est pas aisée et je ne crois pas devoir la trancher dans ce procés...” 78 3. Le troisième cas important de ce groupe concerne l’interprétation d’une disposition législative confisquant des titres 71.

72. 73.

A la p. 21.

Civ. Haifa 351/49, P.D.C. tome 7, p. 167; A.D, 1950, p. 79-81. A la p. 172-173

(Le Conseiller

Landau).

DROIT INTERNATIONAL ET DROIT INTERNE

155

en devises étrangères‘, Un des arguments mis en avant par les demandeurs à l’appui de l'interprétation restrictive de la

loi, en vue, notamment,

d’exclure

de son champ

d’application

les titres se trouvant hors d'Israël, était la limitation territoriale du pouvoir législatif imposée par le droit international. La Cour a reconnu qu'il fallait interpréter les lois internes en se conformant dans la mesure du possible au droit international; mais en appliquant le critère sus-mentionné sur l’existence d’une règle internationale, l'arrêt constate qu'il n’y a pas de règle imposant la limitation territoriale des effets de la législation interne, puisque — "... il n’y a pas d'accord entre les peuples civilisés en la matière...”’55, Ayant ainsi étudié la nature des règles internationales applicables en Israël en vertu du système de l’incorporation, voyons à présent le fondement juridique de cette pratique. Section 4: FONDEMENT JURIDIQUE DU PRINCIPE DE L’INCORPORATION. On trouve dans la jurisprudence israélienne deux justifications distinctes de l’application du droit international par les tribunaux. Essayons d'apprécier les conséquences pratiques et les caractères théoriques de chacune d'elles.

§ 1—Applicction

du droit des gens en vertu du principe de la Common Law. Par l’article 11 de l’Ordonnance sur la loi et l’administration de 5708-1948 %, le législateur israélien a donné force de 101 aux règles qui avaient été en vigueur en Palestine à l’expiration du mandat britannique, sous réserve de leur compatibilité avec les lois israéliennes et de leur adaptation à l’établissement de l'Etat et de ses organes. Ces règles adoptées par “réception” incluaient une partie de la Common Law, applicable en Palestine à titre supplétif en vertu de l’article 46 de l’Ordonnance royale de 19227 dans la mesure 74, H. ₪. 279/51, P.D. A.D. 1952, p. 229-254. 75.

A

la p. 966

(Le

tome

6, p. 945

Conseiller

Prof.

(surtout

p. 966-967,

et 981);

Agranat).

76. J.O. 5708 (1948), supplément A, p. 1. 77. Palestine Order in Council, 1922, Drayton, tome 3, p. 2569.

The Laws

of Palestine,

156

R. LAPIDOTH

où les circonstances propres à la Palestine et le caractère de sa population le permettaient, et dans la limite des pouvoirs de la Couronne. Comme les rapports entre le droit international public et le droit interne n’ont été réglés ni par la législation palestinienne ni par celle d'Israël, nous serions en présence d’une lacune à combler par la doctrine anglaise selon laquelle — “International Law is Part of the Law of the Land”. Or, comme ce principe ne tombe sous 16 coup d'aucune des réserves sus-mentionnées relatives à l'adoption de la Common Law en Palestine et à la mise en vigueur du droit palestinien en Israël, rien ne s’oppose à la réception en Israël de la doctrine de l’incorporation par l'intermédiaire de la Common Law. De nombreux arrêts ont ainsi fondé la valeur interne du droit des gens en Israël, par exemple Requête 41/49”: “... L'avocat

de la requérante

yen sur le droit international,

fonde

son

deuxième

ce qui soulève

deux

moques-

tions: la première est de savoir si, à défaut de reconnaissance de certaines règles du droit international public par les autorités compétentes de l'Etat, les tribunaux

ont

compétence pour trancher conformément à ces règles: d'autre part, existe-t-il en droit international une règle qui donne à Ja requérante le droit de réclamer à l'Etat d'Israël le paiement de la dette qui fait l’objet de ce procés? En ce qui concerne la premiére question, des opinions 86 sont affirmées dans plusieurs arréts rendus par les hautes juridictions anglaises, — opinions qui, vu les dispositions de l’article 46 de l’Ordonnance royale de 1922 et l’article 11 de l’Ordonnance sur la loi et l’administration de 1948, doivent nous servir de guide ...” Ici la Cour Suprême constate l’applicabilité du droit international par l’intermédiaire de la Common Law, sans se prononcer sur la possibilité de fonder la valeur obligatoire du droit des gens sur d’autres bases. Citons encore deux décisions, jugements de tribunaux de 78.

V. Oppenheim-Lauterpacht,

ler, 7e édition, pe

p.

1948, p. 37-38.

‎‫ שור‬41/49,

72-79.

P.S.C.

tome

International 9,

p.

14

Law, (sp.

A p.

Treatise, 20);

A.D.

tome 1950,

DROIT

INTERNATIONAL

ET

DROIT

INTERNE

157

district cette fois, qui invoquent eux aussi la Common Law comme origine de la valeur obligatoire des régles internationales, mais l’un en soulignant qu’elle en est la source unique, l’autre en mentionnant vaguement la possibilité d’une application des règles internationales en vertu de l’autorité du droit international lui-même. “...La Cour Suprême a déjà jugé... que le droit international public ne fait pas partie, de par sa seule nature, du droit interne de l'Etat. Mais certaines matières du droit international publie ont été reçues par le droit anglais comme en faisant partie intégrante, et par suite elles sont également partie du droit d'Israël par le jeu de l’article 46 de l’Ordonnance royale de 1922, et de l’article 11 de l’Ordonnance sur la loi et l’administration de 5708-1948 . . ‫ייא‬,‎ D’aprés ce passage les seules normes internationales applicables en Israël le sont en vertu de la Common Law. Une tendance plus “internationaliste” se dessine dans une décision du tribunal de district de Jérusalem: "... Les règles du droit international reconnues dans les pays civilisés ont valeur obligatoire en Israël, sinon en

vertu de l’autorité du droit international lui-même, du moins comme partie intégrante de la Common Law anglaise qui est en vigueur dans le pays à défaut d’autres dispositions, en vertu de l’article 46 de l’Ordonnance royale et de l’article 11 de l’Ordonnance

sur la loi et l’ad-

ministration

de 5708-1948...” #1 Le juge s’en tient encore 3 la Common Law pour justifier l'application du droit des gens, mais il n’exclut pas la possibilité de son applicabilité autonome. Ayant ainsi relevé trois nuances différentes dans le groupe des décisions selon lesquelles la force obligatoire du droit international en Israél découle de la Common

Law, examinons

les conséquences d'une telle attitude. Si le caractère obligatoire des règles internationales dérive de la Common Law, il en résulte logiquement que les règles App. 80. p. 153-156.

Civ. 81. p. 391-397.

Cr. T.A.

Jm.

303/52,

208/52,

P.D.C.

P.D.C.

tome

tome

9, p. 75

8, Pp. 455

(sp. p. 81);

(sp.

p. 458);

A.D.

1953,

A.D.

1953,

.

158

R.

LAPIDOTH

elles-mémes sont celles reconnues comme telles par la Common Law. Donc, un tribunal israélien qui prétendrait appliquer une norme internationale, ne ferait valoir en réalité que ce que la Common Law a considéré comme un principe du droit international. Il en résulterait une conception assez étroite du droit des gens. Le problème serait encore beaucoup plus grave pour les nouvelles coutumes internationales qui n’ont pas été incorpo-

rées

à la Common

Law

avant

l'établissement

de

l'Etat

d'Israël. Deux nouvelles questions se poseraient alors: d’une part, les juridictions israéliennes doivent-elles appliquer des règles internationales dont la consécration n’est intervenue en Angleterre que depuis l'indépendance d'Israël? D'autre

part, les juges israéliens peuvent-ils tenir compte de l’émergence de nouvelles normes internationales avant leur recon-

naissance par les tribunaux anglais? ® Ces inconvénients n'existent pas quand, au lieu de rattac her la validité interne du droit des gens à la Common Law, on lui attribue une force obligatoire propre.

§ 2.— Application du droit des gens en vertu de l’existence même d'Israël en tant que nation civilisée. Dans un arrét récent de la Cour Supréme, la majorité a reconnu, en des termes clairs et non-équivoques, la force obligatoire autonome des régles du droit international en Israél; cette validité découle, selon la Cour, de l'existence même d'Israël en tant qu’Etat indépendant *. Il s'agissait de la compétence pénale des tribunaux israé-

liens à l’égard ,

d’actes

commis

en haute

mer

sur

un

navire

battant pavillon israélien **. Après l'exposé du principe qu’en 82. Dans un arrêt récent ne concernant pas le droit internat ional public (App. Civ. 81/55; 84/55; 91/55; 92/55, P.D. tome 11, p. 225-246), la jurisprudence israélienne a pris une attitude d'indépe ndance à l'égard du droit anglais. La question se posait s’il fallait préférer en matière de dommages-intérêts une règle énoncée en 1955 par la Chambre des Lords en Angleterre, ou la règle contraire contenue dans un arrêt anglais antérieur

qui

avait

servi

de

base

à une

décision

israélie

nne en 1952. La Cour se déclara libre des entraves du nouveau précédent anglais, et dans des obiter dicta les Conseillers déclaraient en général l’indépendance du droit israélien à l'égard de la jurispru dence anglaise. (Ces dicta varient quant au degré de cette indépend ance). 83. App. Cr, 175/54, P.D. tome 10, p. 5-40. 84. V. supra, p. 140.

DROIT INTERNATIONAL ET DROIT INTERNE

159

pareil cas les tribunaux de l'Etat du pavillon sont compét ents, le Conseiller Dr. Cheshin ajoute®: 2: Ce principe est devenu, à mon avis, partie intégrante du droit de ce pays, par trois voies: 1) par le jeu de l’article 46 de l’Ordonnance royale de 1922; 2) en vertu de l’article ler de l’ “Admiralty Offences (Colonial) Act, 1849” qui a été incorporé dans les lois du pays par l’article 35 de l’Ordonnance royale de 1922; 3) de par la souveraineté de l'Etat d’Israél.. .” A propos

de

cette

troisième

source,

l'arrêt

s’explique

ainsi 5: "5... En outre, il me semble que même si nous ne pouvions pas nous appuyer sur l’article 46 de l’Ordonnance royale et sur l’article ler de la loi anglaise de 1849 mentionné ci-dessus, nous devons affirmer que le principe cité est devenu partie intégrante du droit du pays parce qu’Israél est un Etat souverain et indépendant. La Déclaration d’Indépendance a ouvert au nouvel Etat la voie des lois et des coutumes internationales, dont tous les Etats peu-

vent, de par leur souveraineté, se prévaloir, et elle a enrichi le droit du pays des principes reconnus par le droit des gens. Nous ne devons plus puiser ces principes à des sources secondaires ou par des voies dérivées établies spécialement à cet effet; car Israël étant membre de la famille des peuples, nous pouvons désormais nous référer directement aux sources premières, en vertu du dernier membre de phrase de l’article 11 de l’Ordonnance sur la loi et l'administration (désignant le droit qui sera en vi-. gueur en Israël après la Déclaration d’Indépendance, “avec les modifications qu’entraine l'établissement de l'Etat et de ses organes”), et même sans aucune référence a cet article et indépendamment de lui...” Ce passage intéressant reconnait au droit international une valeur propre dans l'Etat, indépendamment de toute règle interne l’y introduisant. Il témoigne donc d’une attitude très positive des organes judiciaires à l'égard du droit des gens. Il appelle pourtant deux remarques: 85. 86.

A la p. 14. A la p. ₪.

R. LAPIDOTH

160

a. Il est peut-être difficile de fonder sur la sowverainete, CO: cept qui évoque l’idée de pouvoir absolu, l’applicabilité du droit international, qui comporte des limitations au pouvoir des Etats. Il aurait mieux valu rapprocher la force du droit des gens de la notion d'indépendance ou de celle de compétence. Il semble en effet que ce soient ces qualités que le Conseiller a voulu désigner par le terme “souveraineté” *’. b. N'oublions pas qu’en l'espèce la règle internationale invoquée était favorable à l'Etat, puisqu'elle attribuatt une compétence

La

organes.

à ses

Cour

serait-elle

se

prononcée

d’une facon aussi nette pour l’applicabilité du droit des gens de par sa force propre même dans un cas de limitation ou de réglementation de la compétence étatique par la régle internationale invoquée?... Les termes clairs et précis du passage ne permettent pas d’en douter. Ce point de vue à l’égard du fondement juridique de la validité interne du droit des gens semble plus heureux quant à ses conséquences que l’opinion qui fait découler cette applicabilité de la Common Law par le jeu de l’article 46 de l’Ordonnance royale de 1922. D’une part, il permet aux juges israéliens de dégager euxmêmes le contenu des règles internationales sans être liés par la conception anglaise de ces régles. D'autre part, il évite les problèmes qui se poseraient si l’on considérait les juges comme liés par les règles instaurées par la jurisprudence anglaise postérieurement à l'établissement de l'Etat d'Israël: les tribunaux israéliens sont compétents pour examiner en toute indépendance une norme internationale, qu’elle soit née avant ou après 1948. § 3.— Appréciation des doctrines exposées du point de vue théorique. Les deux théories qui sont à la base de la force obligatoire du droit international commun en Israël, sont-elles dualistes ou monistes “? Sans pouvoir nettement ranger l’une ou l’autre 87.

Sur

les notions

de souveraineté,

indépendance

et compétence,

v.

Rousseau, L’aménagement des compétences en droit international, R.G. D.I.P. 1930, p. 420-460, surtout p. 439, 440, 459; Rousseau, L’Indépendance de l'Etat dans l'ordre international, R.A.D.I. 1948(2), p. 171-253.

88.

Nous

ternational,

ne nous

référons

puisque

le

qu'au monisme

monisme

avec

avec primauté

primauté

du

droit

du droit ininterne

n'est

DROIT

INTERNATIONAL

ET

DROIT

INTERNE

161

des deux opinions exposées avec la doctrine de Scelle-Kelsen ou avec celle de Triepel-Anzilotti, il semble que la première théorie fondée sur la Common Law soit de tendance dualiste, tandis que la seconde qui s’appuie sur l’existence même d'Israël, se rapproche du monisme. Le principe anglais “International Law is Part of the Law of the Land” a des aspects dualistes (la primauté du droit interne en cas de contradiction ‘’), et des aspects monistes -‫'גת‬1)‎ corporation per se du droit international au droit interne et son application immédiate aux sujets du droit interne sans acte de transformation’). Si la force obligatoire du droit des gens en Israël découlait uniquement de l’adoption de la Common Law par le jeu de l’article 46 de l’Ordonnance royale, lequel soumet en outre l’applicabilité de la Common Law — et, par conséquent, celle du droit international — aux contingences locales, le systéme israélien serait encore plus proche du dualisme que le système anglais. En effet, l’application des règles internationales en tant que faisant partie de la Common Law, et sous réserve des circonstances du pays et de ses habitants, est incompatible avec la conception moniste. D’autre part, le fait que les régles internationales sont appliquées aux particuliers sans qu’elles soient expressément transformées, nous empêche de qualifier la pratique ci-dessus exposée de purement dualiste. La vue selon laquelle le droit des gens est doué d’une force obligatoire interne propre en vertu de l'existence même d'Israël en tant qu’Etat indépendant offre un caractère plus moniste. L’applicabilité immédiate du droit international, sans l’autorité d’une disposition interne expresse à cet effet, reflète une

attitude moniste. Mais n’oublions pas que, d’une part, Israël a une conception que

la négation

du droit international;

droit de la paix, R.A.D.I.

1931(1),

v. Bourquin,

Règles

p. 1 (sp. p. 135-146);

générales

du

Guggenheim,

international public, Genève, 1953, tome ler, p. 25-26. V. Pour une critique de cette règle du point de vue moniste, 89. tome 2, 1934, Scelle, Précis de droit des gens, principes et systématique, p. 354. Pour une critique de cette régle du point de vue dualiste, v. Op90. ler, § 21, penheim, International Law, A Treatise, 2e édition, 1912, tome m, v. son p. 26. Pour une attitude plus modérée de la part d’Oppenhei Traité

de droit

introduction à Picciotto, The Relation of International of England and of the United States, London, 1915.

Law

to the Law

162

R. LAPIDOTH

plutôt “nationale” des règles du droit international ™ et que, d’autre part, en cas de conflit, la régle interne l’emporte *. On ne peut donc pas soutenir que la pratique israélienne, méme libérée des entraves de la Common Law, soit une consécration de la théorie moniste. Il n’en reste pas moins qu'elle témoigne d’une tendance moniste. Après l’étude du principe de l'adoption globale, nous devons aborder le problème délicat des conflits entre la loi interne et la règle internationale. CHAPITRE LE PROBLEME LA REGLE

DES

INTERNATIONALE

II

CONFLITS

ET LA REGLE

ENTRE DE DROIT

INTERNE

Si le développement de la solidarité interétatique et des rapports internationaux,

sortissants,

tant entre les Etats

qu’entre

leurs res-

a amené la plupart des pays a reconnaitre la vali-

dité interne du droit international

coutumier,

la conscience de

la portée primordiale de cette dépendance mutuelle des peuples et de leurs membres n’est pas encore assez forte pour que le droit interne céde, en cas de conflits, devant la régle inter-

nationale. Ainsi, nombre

les principes

suivis en

pareil cas

par

un

grand

d’Etats, dont Israél, sont les suivants:

1.

Interprétation des textes mesure du possible, avec 2. En cas @incompatibilité interne l’emporte. Examinons l’application de

internes en conformité, dans la les règles internationales ; absolue des deux règles, la règle ces deux idées en Israël.

Section 1: L’INTERPRETATION DES TEXTES INTERNES EN CONFORMITA AVEC LES REGLES INTERNATIONALES,

$ 1-- Application du principe par la jurisprudence. Il s’agit d’un principe d’interprétation universellement reconnu, même par les dualistes "5, et affirmé maintes fois par les 91. V. 92. V. 93. V. par Gidel,

supra, infra, p. ex. 1929,

p. 149—151. chapitre 2. Anzilotti, Cours p. 57.

de droit

international,

trad.

française

DROIT INTERNATIONAL ET DROIT INTERNE

163

tribunaux israéliens. On peut citer deux décisions qui ont énoncé le principe, et une troisième où il a été appliqué sans être expressément invoqué.

a.

Dans H.C.279/51°

la Cour s'était demandée

si le droit

international imposait la limitation territoriale au législateur interne; une telle règle aurait obligé les magistrats à interpréter restrictivement une loi interne confisquant des titres déposés à l'étranger, puisque — "... C’est une règle reconnue qu’il faut interpréter une loi interne écrite — si son contenu n’impose pas une autre interprétation — en conformité avec les régles du droit international public...” © Mais en fin de compte la Cour décida qu’il n’y avait pas lieu, en l'espèce, d'interpréter la loi interne conformément à un principe international qui 4 son avis n'existait pas °°. b.

Dans App.Cr.5/51° la Cour a affirmé que — ‘“,.. C’est une règle connue qu’en interprétant la loi le tribunal s’efforcera, dans la mesure du possible, d'éviter des conflits entre le droit national et les régles du droit international qui lient Etat, mais ce principe n’est qu'une règle d’interprétation...” °° Il s’agissait en l’espèce de la loi sur le service militaire °°. Ici non plus la régle d’interprétation citée ne jouait pas; et cette fois le juge n’a méme pas examiné la régle internationale invoquée, puisque la loi interne était si claire qu’il n’y avait pas lieu de l’interpréter. c. Dans App.Cr.44/52 1% la Cour interpréta, en ordre subsidiaire, le sens de l’expression “toute personne” dans l’article du Code pénal relatif au crime de trahison“, et conclut que — 94. H. C. 279/51, supra, p. 139.

P.D.

tome

95.

A la p. 966.

96.

V. supra,

97. 98.

App. Cr. 5/51, P.D. A la p. 1065-1066.

99.

La

(1949), 100. v. aussi 101.

loi sur

0

6, p. 945;

A.D.

1952, p. 229-254;

v. aussi

56.

le service

tome

5, p. 1061;

militaire

A.D.

de 5709-1949,

1951, p. 10-11. Recueil

p. 271. App. Cr. 44/52, P.D. tome 6, p. 922; AD. supra, p. 143. Article 49 alinéa ler du Code pénal de 1936.

1952,

des

lois 5709

p. 550-554;

R. LAPIDO TH

164

“

Si l'acte a été commis,

comme

dans

le cas

présent,

par un habitant d’Israél, personne qui, étant tenu de loyauté envers l'Etat, ne peut exciper d’une exemption fondée sur le droit international public (selon lequel il n’y a point trahison sans un devoir de loyauté; v. Oppenheim-Lauterpacht p. 322), une telle personne peut étre accusée de trahison...” *° Ce passage est intéressant. Sans rappeler expressément la règle d'interprétation qui vient d’être exposée, il limite considérablement la portée d’un texte de droit interne en le soumettant aux exemptions reconnues par le droit international. Ces quelques exemples illustrent la méthode d’interprétation israélienne qui s’efforce d’éviter les contradictions entre les régles internes et les principes internationaux. Quelle est l’origine de cette pratique? § 2—

juridique du principe. L’interprétation de textes internes en conformité avec droit international

Fondement

le

découle, nous semble-t-il, de trois sources:

a. b. ce.

Le droit international; La Common Law; La Déclaration d’Indépendance.

a.

Le droit international.

La pratique des Etats et la doctrine: consacrent unanimement le devoir des juges d'interpréter les lois internes conformément au droit international. On peut, paraît-il, en conclure que ce principe est devenu une règle du droit des gens. La jurisprudence israélienne s'étant ralliée à la doctrine de Vincorporation, on peut présumer qu’elle a adopté cette règle d'interprétation au même titre que les autres normes du droit international. 102.

A la p. 938.

103. V. p.ex. Lauterpacht, Is International Law a Part of the Law of England? Transactions of the Grotius Society, tome 25, p. 51-88 (surtout p. 57-59); Guggenheim, Traité de droit international public, 1953, tome ler, p. 31, note 4; P. de Visscher, Les tendances internationales des constitutions modernes, R.A.D.T. 1952(1), p. 511-578 (surtout Pp. 527-528); Masters, International Law in National Courts, 1932, p. 50, 85, 120, 122, 192, 225; Morgenstern, Judicial Practice and the Supremacy of International Law, B.Y.IL. 1950, p. 42-92 (surtout p. 82-86); Anzi-

lotti, Cours de droit international,

trad. francaise

par Gidel,

1929, p. 57.

DROIT

b.

La Common

INTERNATIONAL

ET

DROIT

INTERNE

165

Law.

Parmi les régles que les tribunaux israéliens ont empruntées à la Common Law, par le jeu de l’article 46 de l’Ordonnance royale de 1922, se trouvent les principes d’interprétation de la jurisprudence anglaise. Les juges anglais reconnaissent et appliquent constamment le principe d’interprétation qui nous intéresse 101795. La jurisprudence israélienne a donc pu s’inspirer de cette tradition pour adapter ainsi le droit interne au droit international. Mais il semble qu’il y ait en outre un texte israélien interne qui milite en faveur d’un tel mode d’interprétation: c.

La Déclaration @Indépendance ”. Tout en reconnaissant l'importance politique et la valeur morale de la Déclaration d’Indépendance faite par les représentants de la Communauté juive de Palestine à l'expiration du mandat britannique, la jurisprudence israélienne s’est refusée à voir dans ce texte une véritable source de droits et

d'obligations **. Néanmoins,

dans

un

Cour Suprême s’est d'interprétation.

à ce

document

référée

Or, la Déclaration

d’Indépendance

arrêt important

étant

comme

pénétrée

la critère

d’un

es-

prit de respect pour le droit international, la jurisprudence israélienne sera autorisée à s’en inspirer pour interpréter le droit israélien dans un sens conforme au droit des gens. Ainsi,

les juges israéliens,

en

interprétant

le droit

interne

autant que possible en conformité avec le droit international, peuvent réduire et minimiser considérablement les cas de conflits entre les deux ordres de règles. Mais que fera le juge dans les cas, d’ailleurs rares, de contradiction flagrante? 104. V. Halsbury’s Laws of England, 2e édition, tome 31, p. 508-509; Lauterpacht, op. cit., p. 57-59; ₪, de Visscher, op. cit., p. 524; Morgenstern, op. cit., p. 82-86; in the English Courts,

und Vélkerrecht v.

p. ex.

Lefébure, The Application of International Law Zeitschrift für ausländisches ôffentliches Recht

1956/57,

Theophile

v.

The

p. 568-612 Solicitor

(sp. p. 571). Pour

General

Dudley (1884), 14 Q.B. p. 273 (surtout 2 Ex.D. p. 63 (surtout p. 85). 105. J.O. 5708 (1948), p. 1. 106.

H. C. 10/48,

107. '‫דד‬‎ Ci 78/58,

P. tome

‫קס‬‎

[1950]

la jurisprudence,

A.C.

p. 186;

à la p. 284); R. v. Keyn

ler, p. 33; H.C.

‘p. 871.

7/48,

P. tome

R.

v.

(1876)

ler, p. 104.

R. LAPIDOTH

166

Section

2: APPLICATION DE LA REGLE INTERNE EN CAS DE CONTRADICTION ABSOLUE.

§ 1— Application du principe par la jurisprudence. Lorsque, malgré les efforts d’interprétation, les deux régles se rapportant 4 une espéce sont inconciliables, le juge israélien se croit tenu d’appliquer la régle interne. Ce principe a été posé par la Cour Suprême dans App.Cr.5/51 . L’appelant, accusé de ne s’étre pas présenté à la conscription, contestait l’applicabilité de la loi sur le service militaire* au territoire de la ville de Jérusalem, en invoquant notamment le droit international public. La défense admettait qu’elle ne pouvait exiger l’application du droit international s’il est incompatible avec le droit national; mais elle prétendit n’avoir plaidé ce moyen que pour permettre à l’accusé de s’y référer à nouveau, 16 cas échéant, devant un tribunal international. La Cour, sans même examiner la règle du droit des gens invoquée, appliqua le droit interne qui imposait indubitablement la conscription à toute personne résidant sur le territoire soumis aux lois d'Israël — y compris la partie israélienne de Jérusalem. 4

"... Quand il s’agit non pas d’une règle de la Common Law mais d’une loi écrite exprimant l'intention formelle du législateur, il importe de faire prévaloir cette intention nonobstant toute contradiction entre le texte de la loi et 16 droit international . . . 1 “... Dans le présent cas, l’article ler de la loi sur le service militaire de 5709-1949 dispose que la résidence d’une personne sur “le territoire soumis au droit d'Israël” Poblige au service selon cette loi. A dessein l’article ne parle pas du territoire de l’Etat, mais du territoire soumis à ses lois, et la ville de Jérusalem est située sur ce

territoire. Ainsi, même 108. supra,

109.

5709 110.

si nous

acceptions l'argument

App. Cr. 5/51, P.D, tome p. 163.

La

loi sur

(1949), p. 271.

le service

5, p. 1061;

militaire

Le Conseiller Dr, Sussmann,

de

A.D.

1951, p. 10-11;

5709-1949,

à la p. 1066.

de I’appe-

Recueil

v. aussi

des

lois

DROIT

INTERNATIONAL

ET

DROIT

INTERNE

167

lant selon lequel la conscription obligatoire des personnes résidant à Jérusalem est contraire au droit international — question que nous n’entendons point trancher — cela ne dispenserait pas l’appelant de l’obligation de se conformer a la loi...”™ La jurisprudence israélienne a donc nettement pris position en faveur de la suprématie des régles internes en cas de conflit. Comment peut-on justifier cette attitude du point de vue

du droit israélien? $ 2.— Fondement juridique du principe. Il semble que la justification légale de la prééminence du droit interne varie selon qu’on adopte tel ou tel fondement juridique pour l’application du droit des gens en Israël. A. Si l’on soutient que le droit international est valable en Israél en vertu du principe de la Common Law adopté par le jeu de l’article 11 de l’Ordonnance

sur la loi et l’administra-

tion de 5708-1948, et de l’article 46 de l’Ordonnance royale de 1922", la primauté du droit interne peut être expliquée de trois maniéres: a. Avec la doctrine de l’incorporation, le droit israélien a puisé également dans la Common Law le principe de la suprématie de la loi interne en cas de conflit™*. Si l’on admet que les rapports

entre

le droit

international

et le droit local en

Israél sont régis par des régles empruntées 8 la Common Law, le droit anglais nous prescrit non seulement l’applicabilité du droit des gens, mais aussi la suprématie des régles internes écrites. b. On arrive au même résultat par un autre raisonnement, un peu plus subtil. 111, 112. 113.

A la p. 1067. V. supra, p. 155—158. V. Halsbury, op. cit., tome

31, p. 508-509,

land, Studies in International Law, Oxford,

§§ 658, et 659;

1898, p. 175 et suiv.

Hol-

(sur-

tout p. 195); Lauterpacht, op. cit., p. 58 et 76; Triepel, Droit international et droit interne, trad. francaise par Brunet, 1920, p. 150-151; Lefépure, op. cit., p. 576-578. (1906) Session Cases, Pour la jurisprudence, v. Mortensen v. Peters 5th series, 93, cité dans Briggs, The Law of Nations, Cases Documents and Notes, 1952, .‫כ‬‎ 52. (Pour l'opinion du Prof, Lauterpacht sur cet arrét, v. Lauterpacht, op. cit., p. 58, note g); Theophile v. Solicitor Gemeral [1950] A.C. p. 186.

R. LAPIDOTH

168

Ne pourrait-on soutenir qu’un conflit entre une règle israélienne et une régle internationale incorporée n’est pas concevable? En effet, si le droit international fait partie du droit israélien sur le seul fondement de la Common Law 4 laquelle la jurisprudence israélienne fait appel pour combler des lacunes, il ne peut étre question de son application en cas d’existence de règles internes. En pareil cas, à défaut de lacune du droit interne, il n’y a même pas lieu de se référer à la Common Law qui incorpore le droit des gens. En d’autres termes, lorsqu'il existe une règle interne applicable, le principe même de l’incorporation ne joue pas, et il ne peut dès lors y avoir conflit entre la loi interne et une règle internationale incorporée. c. Enfin, la primauté du droit national s'impose par l'effet des restrictions apportées à l'application de la Common Law en Israël. L'article 46 de l’Ordonnance royale subordonnait la validité de la Common Law en Palestine à la nécessité de tenir compte des circonstances contingentes propres au pays et des conditions tenant à la population et par référence aux limites des pouvoirs de la Couronne sur la Palestine. D’autre part, l’article 11 de l’Ordonnance sur la loi et l’administration de 1948 soumet la réception du droit palestinien 4 deux conditions supplémentaires: sa compatibilité avec les lois israéliennes, et son adaptation à l’existence de l'Etat et de ses organes ‘’°. On pourrait soutenir que ces différentes réserves empéchent l’applicabilité du droit des gens en cas d'existence d’une règle interne contraire, surtout quand il s’agit d’une règle d’origine israélienne. Ayant examiné trois explications juridiques de la suprématie du droit interne en supposant que le droit international ne fait partie intégrante du droit israélien qu’en vertu de la Common Law, il nous faut à présent examiner la situation à partir de l’applicabilité du droit des gens par le moyen de son incorporation directe au droit interne.

B. Si le droit international est valable en Israél par le fait meme de l’existence de celui-ci en tant que nation civilisée, 114.

V. supra,

0. 6

115.

V. supra,

p. 155.

DROIT

INTERNATIONAL

ET

DROIT

INTERNE

169

la primauté de la règle interne en cas de conflit peut être fon-

dée sur deux raisonnements: a. Comme nous l’avons vu, les règles internationales applicables en Israél sont uniquement celles qui sont censées reconnues par |’Etat. Dans la plupart des cas, cette reconnaissance est présumée de par l’acceptation d’une règle internationale par les peuples civilisés "1, Mais, l’existence d’une règle contraire

en Israél, ne renverse-t-elle

pas la présomption

et,

par là, l’applicabilité de la règle internationale en droit interne? Le Juge n’hésitera pas à préférer une règle interne à un principe international plus ou moins incertain et dépourvu de valeur interne. b. En outre, on peut justifier la primauté du droit interne par des considérations d'ordre organique. Même si le juge est en principe tenu d'appliquer des règles internationales, même si on

reconnaît

le dédoublement

fonctionnel

de

ses

compé-

tences**’, il reste avant tout un agent de l’ordre interne ''* qui l’a nommé et dont il tient ses pouvoirs. C’est 14 notamment l'explication de la suprématie du droit interne proposée par la jurisprudence israélienne: *... Les tribunaux de ce pays tiennent leur compétence des lois de l'Etat et non pas du droit international...” ™ Ainsi nous avons vu plusieurs fondements juridiques possibles de la supériorité du droit interne sur le droit international en cas de conflit, du point de vue du droit interne israélien. Pour terminer cette section, nous mentionnerons encore une autre explication suggérée par un arrêt, mais qui nous paraît critiquable. Dans App.Cr.5/51:* la Cour semble avoir soutenu que la 116.

V. supra, p. 149—150.

Sur le dédoublement fonctionnel des gouvernants et des agents 117. nationaux qui sont aussi gouvernants et agents internationaux, V. Scelle, Précis de droit des gens, principes et systématique, 1932-1934, tome ler,

p. 43, 56; tome 2, p. 10, 319. V. Batiffol, Les sources 118. privé, cours professé à l’Institut

internationales du des Hautes Etudes

l'Université de Paris, 1954-1955, p. 53-54. 119. App. Cr. 5/51, P.D. tome 5, p. 1061 120. Ibid.

droit international Internationales de

(p. 1066); A.D. 1951, p. 10-11.

170

R. LAPIDOTH

primauté du droit interne dans un litige opposant

un parti-

culier à l'Etat dérive également du fait que le droit international régit les rapports entre Etats, tandis que les droits et les obligations des individus sont soumis au droit interne: “... Le droit international impose sans doute certaines obligations à l'Etat; mais comme il réglemente non pas les rapports entre un Etat et ses ressortissants mais seulement ses relations avec d’autres Etats, les obligations qu’il comporte intéressent uniquement un autre Etat ou

d’autres Etats; le citoyen ne peut prétendre en bénéficier . Aussi, une personne accusée d’avoir violé une loi de l'Etat ne peut exciper du droit international, car les tribunaux ont a statuer sur les rapports entre l'individu et l'Etat sur la base du seul droit 10081... ‫"יג‬‎ Cet argument paraît bien spécieux. D’une part, il contredit le développement du droit international qui confère à l’individu et à des entités non-étatiques, inter-étatiques ou supraétatiques une place de plus en plus importante 1%. D'autre part, s’il fallait admettre que le droit des gens ne crée de droits et de devoirs que pour les Etats, il en résulterait non pas la simple primauté du droit interne sur le droit international

en cas de conflit, mais

plutôt l’exclusion

totale

des règles internationales dans tout litige interne, c’est-à-dire la négation même de la doctrine de l’incorporation. Or, comme les tribunaux israéliens appliquent en général le droit international, il semble bien que pour eux celui-ci ne se limite pas aux rapports entre Etats, contrairement à l'opinion exprimée dans le passage cité.

Dans les chapitres précédents nous avons étudié les principes dominant les rapports entre le droit international public coutumier et le droit interne tels qu’ils se dégagent de la juris-

prudence laïque israélienne. Mais il y a encore en Israël des tribunaux religieux compétents en matière de statut personnel. 1260066 des problèmes particuliers posés par l'existence de ces juridictions fera l’objet du chapitre suivant. 121. 122.

Ibid., p. 1066. V. Rousseau, Droit

international

public,

1953,

p. 154-222.

DROIT INTERNATIONAL ET DROIT INTERNE CHAPITRE PROBLEMES

POSES

JURIDICTIONS

PAR

171

III L’EXISTENCE

DE

RELIGIEUSES

Afin de pouvoir comprendre les difficultés que souléve l’existence de tribunaux religieux dans l'Etat d’Israél, on étudiera brièvement l'étendue de leur compétence, et leur attitude à l'égard du droit des gens. Section

1: COMPETENCE DES JURIDICTIONS RELIGIEUSES. Le législateur palestinien, sous le régime du mandat britannique, avait conféré une compétence partielle en matiére de statut personnel aux tribunaux des communautés religieuses reconnues 15%. Ces dispositions ont été conservées, avec quelques modifications‘, par l'Etat d'Israël. Selon ce système, les tribunaux musulmans ont compétence générale en matière de statut personnel pour tout Musulman, citoyen israélien ou étranger, réserve faite pour les Musulmans de nationalité étrangère qui, dans leur pays d’origine, ne sont pas soumis à la juridiction du cadi ”*. 123.

Articles

51 à 55 et 65 de l'Ordonnance

royale

de 1922,

Drayton,

The Laws of Palestine, tome 3, p. 2569. Les communautés reconnues sont: la Communauté orthodoxe orientale; la Communauté catholique romaine; la Communauté grégorienne catholique arménienne; la Communauté arménienne; la Communauté uniate chaldéenne; la Commucatholique syrienne; la Communauté nauté juive; la Communauté melchite catholique grecque; la Communauté maronite; la Communauté orthodoxe syrienne; la Communauté musulmane: la Communauté druze (v. l’article 52 de l’Ordonnance royale de 1922, et les articles 30 et 16 de l’amendement de 1939 à YOrdonnance royale de 1922, P.G. 1939, supplément 2, p. 459; le décret sur les communautés religieuses (leur organisation) (la communauté de 5717-1957, Recueil des décrets 5717 (1957), p. 1280).

druze)

Pour la compétence des tribunaux religieux en Israél, v. Silberg, Le statut personnel en Israél, Jérusalem, 1957 — en hébreu; Levontin, Des effets du mariage célébré et du divorce prononcé à l'étranger, Jérusalem,

1957 — en hébreu; Status in Palestine,

Vitta, The Conflict Tel-Aviv, 1947.

in Matters

of Laws

of Personal

124. V. la loi sur la compétence des tribunaux rabbiniques et divorce) de 5713-1953, Recueil des lois 5713 (1953), p. 165. L’article 125. suit les matiéres

(mariage

comme royale de 1822 énumére 51 de l’Ordonnance comprises dans le “statut personnel” : mariage et Ai-

vorce, pension alimentaire (‘‘alimony and maintenance”), tutelle (“guardianship”), légitimation et adoption des mineurs, affaires relatives aux personnes incapables d'accomplir des actes juridiques sur leurs biens, successions, testaments et legs, administration des biens des absents. 126.

amendé

V.

article

52

en 1939, P.G.

de

VOrdonnance

1939,

supplément

royale

de

2, p. 463.

1922,

tel

qu'il

a

été

172

R. LAPIDOTH

Les tribunaux des différentes communautés chrétiennes reconnues ont compétence exclusive en matiére de mariage, divorce, pension alimentaire et homologation de testament pour tous les citoyens israéliens et les apatrides membres de leur communauté ?”". Les tribunaux rabbiniques ont compétence exclusive en matiére de mariage et de divorce à l'égard — *... des Juifs en Israël dans le pays...” 1? En

outre

citoyens

israéliens

ou résidant

—

“Si une femme juive 881816 un tribunal rabbinique d’une action en paiement de pension alimentaire... intentee 5

.

.

.

.

.

.

.

/

contre son mari juif ou contre sa succession, le défendeur

ne sera pas admis à soulever l’exception d’incompétence du tribunal.” 1° ‫ב‬

Il est intéressant de remarquer que dans ce dernier cas il semble suffire que les deux parties soient juives pour que les juges rabbiniques aient compétence, méme si les intéressés ne sont liés à l'Etat d’Israél ni par le lien de nationalité ni par le lien de résidence :*. Ce bref apercu nous a donné une idée générale de la compétence des tribunaux religieux en Israël. Abordons à présent l'étude des problèmes que ces juridictions posent du point de vue du droit international 19%, 127.

V.

article

54

de

l’Ordonnance

royale

de

1922.

Pour

les

autres

parties du statut personnel et pour les étrangers membres de la communauté, la compétence des tribunaux religieux chrétiens s’exerce en concurrence avec celle des tribunaux laïques, et dépend de 1800076 des ties (v. articles 51, 54 et 65 de l’Ordonnance royale de 1922). 128. Article ler de la loi sur la compétence niques (mariage et divorce) de 5713-1953, Recueil p. 165. 129.

Article

des des

tribunaux lois 5713

par-

rabbi(1953),

4 de la loi précitée.

130. Pour les litiges touchant à d’autres matières du statut personnel des Juifs, la compétence des tribunaux rabbiniques s’exerce en concurrence avec celle des tribunaux laïques et pour autant que les parties y consentent

(article

9 de la loi précitée).

Les

autres

articles

de

la loi

traitent de la célébration de mariage de Juifs en Israël, de la compétence des tribunaux rabbinniques de statuer sur des questions connexes,

etc.

Pour

une

analyse

p. 348-397. 131. Pour simplifier tribunaux rabbiniques.

des

dispositions

notre

exposé,

de

cette

nous

nous

loi, v. Silberg,

référerons

op.

surtout

cit.,

aux

DROIT

Section

INTERNATIONAL

ET

DROIT

INTERNE

173

2:

ATTITUDE

DES TRIBUNAUX RELIGIEUX A L'EGARD DROIT INTERNATIONAL PUBLIC,

DU

La compétence des tribunaux religieux est limitée de telle sorte qu’il n’est guère probable de voir s’y poser de questions relevant du droit international public coutumier. Ainsi il sera bien rare que les juges rabbiniques aient à connaître de questions concernant l’immunité de juridiction d'Etats étrangers ou de leurs agents diplomatiques et consulaires, le statut de navires ou d’aéronefs, etc. Aussi ne trouve-t-on pas, dans la jurisprudence israélienne, d'indications sur l’attitude des tribunaux religieux à l’égard du droit international public commun proprement dit. On sait toutefois qu’il existe des rapports plus ou moins étroits entre le droit des gens et le droit international privé’. 132.

Les

opinions

sont

trés divisées

sur

les limites

et la mesure

dans

lesquelles le droit international privé est assujetti au droit de gens. En premier lieu, existence même des règles de conflits de lois et de juridiction est-elle imposée par le droit international public? D’autre part, le droit des gens national privé?

Sans

impose-t-il

prétendre

tendances

épuiser

qui semblent

certaines

ici cet

régles

intéressant

se dégager

déterminées

sujet,

au

droit

signalons

inter-

les trois

de la.doctrine:

a. Quelques auteurs nient l’existence en droit international public de régles concernant le droit international privé (v. p. ex. Guggenheim, Traité de droit international public, 1953, p. 28, note 2; Kopelmanas, La théorie du dédoublement fonctionnel et son utilisation pour la solution du

probléme

dit

conflits

des

lois,

des

dans:

La

technique

et les

prin-

cipes du droit public, Etudes en l’honneur de Georges Scelle, Paris 1950, tome 2, p. 753-803, surtout p. 767 — article dans lequel le Prof. Guggenheim croit apercevoir une opinion opposée; Fedozzi, Il diritto internazionale

privato,

Teorie

generali

e diritto

civile, 1939,

p. 115-116).

b. Un autre groupe affirme l'existence d’un standard minimum fixé par le droit des gens, standard auquel les règles de conflits de lois doivent se conformer (v. p.ex. Scelle, op. cit., tome 2, p. 320-324; Kahn, Abhandlungen

zum

internationalen

Privatrecht,

tome

et suiv.).

ler,

ec. D'autres auteurs, enfin, tout en admettant que le droit privé est encore indépendant du droit des gens coutumier,

1928,

Pp. 286

international croient pou-

voir constater une réaction moderne contre la séparation rigide du droit international public et privé, par réaction contre le caractère na-

tionaliste des règles de conflits de lois. C’est cette dernière tendance qui amènerait l'adaptation des règles du droit international privé en vigueur (v. p. ex. dans les différents pays, dans le cadre du droit des gens Wortley, The Interaction of Public and Private International Law To-

day,

R.A.D.I.

1954(1),

p. 245-341,

sp.p.

255

et suiv.).

Sur les rapports entre le droit international public et le droit interÜber die Allgemeingiiltigkeit des national privé, v. aussi: Burckhardt, internationalen Privatrechts, Festgabe fiir Eugen Huber, 1919, p. 262-300; Batiffol, Les tendances doctrinales actuelles en droit international privé, und Privatrecht Internationales Niederer, p. 1-66; 1948(1), R.A.D.I.

174

R. LAPIDOTH

Il convient dés lors d’envisager briévement la position occupée par le droit international privé devant les juridictions religieuses. Une des plus graves faiblesses des tribunaux religieux est leur méconnaissance des règles de conflits de lois et de juridiction. La loi religieuse est par sa nature même universelle, et son application n’est limitée ni dans 16 temps, ni dans l’espace. Pour les représentants d’un droit “divin”, chaque membre de leur religion est soumis en toute occurence et en tout lieu à leur système juridique, le droit sacré et éternel ***. Tl en résulte que, pour eux, le droit international privé n'existe pas, et ils appliqueront leur loi, même rétroactive-

ment 15% à tous les cas qui se présentent 19%. Une telle attitude peut entraîner de graves conséquences, par exemple, la nonreconnaissance d’un mariage civil contracté à l'étranger lors même qu'il l’aurait été conformément à la lex loci celebra-

tionis et, en outre, à la loi du pays dont les parties étaient ressortissantes au moment du mariage. Une telle pratique, ne pose-t-elle qu’un problème Volkerrecht,

Annuaire

Suisse

de

droit

international,

purement

1948,

p.

63-82;

Makarov, Volkerrecht und internationales Privatrecht, Mélanges Streit, 1939, p. 535, 133. V. Tedeschi, La transition d’un statut matrimonial civil au statut religieux et l’application rétroactive de ce dernier, dans: israélien, Jérusalem, 1952, p. 136-139 — en hébreu. 134.

En

fait,

aux

point de véritable ce fait, selon sa

yeux

des

tribunaux

religieux

Etudes

de droit

eux-mêmes,

il n’y

a

rétroactivité, le droit religieux étant personnel et de propre conception, applicable à toute personne dès

qu’elle est membre de la communauté religieuse, quelles que soient ses attaches territoriales: v. Levontin, Foreign Judgments and Foreign Status in Israel, American Journal of Comparative Law, 1954, p. 119-

211 (sp. p. 210). 135. Cette pratique des tribunaux religieux a été reconnue par les juridictions laïques: v. App. Civ. 238/53, P.D. tome 8, p.4 (sp. p. 19 — le Conseiller Prof. Silberg, et p. 36 — le Conseiller Dr. Sussmann); App.

Civ.

(rendue

191/51,

avant

Annotated

P.D.

tome

l’établissement

Supreme

Court

8, p. 141.

de l'Etat

Judgments

Pour

une

décision

d'Israël),

palestinienne

v. App.

Civ.

1937, p. 391.

En

sens

le Conseiller Dr. Witkon dans App. Civ. 191/51, P.D. tome (à la p. 180). En revanche nous voudrions préciser que les tribunaux laïques statuent

toujours

conformément

aux

158/37,

contraire

v.

8, p. 141

israéliens

règles du droit international

privé, même quand ils doivent appliquer à l'espèce le droit religieux; V. p. ex. App. Civ. 191/51, P.D. tome 8, p. 141. Sur la différence entre l’application du droit religieux par les tribunaux laiques d’une part, et par les tribunaux religieux d’autre part, ve Levontin,

Des

effets

l'étranger, Jérusalem,

du

mariage

1957, p. 67-72

célébré

—

et

du

en hébreu.

divorce

prononcé

à

DROIT

INTERNATIONAL

ET

DROIT

INTERNE

175

interne, ou intéresse-t-elle aussi le droit des gens? On pourrait soutenir que le droit international public impose aux Etats l'application d’un standard minimum de règles de droit international privé 35%, parmi lesquelles la reconnaissance d’un Statut personnel antérieurement acquis. La violation de ces règles entraînerait alors des conséquences sur le plan international: la responsabilité internationale de l'Etat +’, et la nonreconnaissance à l'étranger des jugements rendus 1%. Comme on le voit, si de véritables problèmes du droit des gens ne

risquent

guère

d’être

soulevés

devant

les tribunaux

religieux, il est à craindre que les règles qu’il prétendrait imposer en matière de conflit de lois et de juridiction n’y soient généralement méconnues. CONCLUSION

Notre analyse de la position du droit des gens en Israël, permet-elle de conclure à l'existence d’un système cohérent régissant les rapports du droit international public coutumier et du droit interne dans ce pays? Il semble qu’on puisse répondre affirmativement. La jurisprudence israélienne a accepté la doctrine anglaise de l’incorporation du droit international commun au droit interne. Ainsi elle applique les normes coutumiéres quand des questions relevant de leur domaine se posent, notamment en matiére de succession d’Etats, d’appréciation d’actes accomplis pendant la guerre d’indépendance, d’immunité des Etats étrangers et de 136.

V.

supra,

note

.

132.

137. Une responsabilité internationale de l'Etat que si au moins l’une des parties est de nationalité

ne pourrait naître étrangère, éventua-

lité qui peut se produire surtout devant les tribunaux la compétence de ces derniers, v. supra, p. 172.

rabbiniques,

Sur

138. Ce serait là une conséquence du droit international privé résultant de la violation d’une norme du droit des gens relative aux conflits de lois. ‫ דן‬est vrai qu’en général les autorités étrangères n’examinent la vali-‫‏‬ dité d’un jugement étranger que du point de vue de la compétence du‫‏‬ tribunal qui l'a rendu, et non quant au fond. Mais il semble que les cas‫‏‬ de violation du droit international public forment une exception à ce‫‏‬ principe et permettent d'y déroger: v. p. ex. Morgenstern, Recognition‫‏‬ and Enforcement of Foreign Legislative, Administrative and Judicial‫‏‬ Acts

which

Quarterly,

are

contrary

to

1951, p. 326-344,

International

Law,

The

International

sp. p. 343. Sur la reconnaissance

Law‫‏‬

à l’étran-‫‏‬

ger d’actes internes contraires au droit des gens, v. aussi Mann, Inter-‫‏‬ p. 181—202.‫‏‬ national Delinquencies before Municipal Courts, L.QR. 1954,

176

R.

LAPIDOTH

leurs agents, de statut de navires et d’aéronefs et de nationalité. De plus, les juges se référent parfois en ordre subsidiaire & des normes internationales, méme si le litige ne reléve pas directement du droit des gens. Le principe de l’adoption globale subit une entorse du fait que la jurisprudence réserve la possibilité de déroger à des règles internationales dans les cas où les contingences particuliéres 4 Israél l’exigeraient; mais on ne reléve encore aucune espèce où cette réserve ait été appliquée. Les critères adoptés pour l’applicabilité interne des règles du droit des gens sont inspirés, eux aussi, de la jurisprudence anglaise, de même que la pratique des juges de se reporter à la doctrine pour en dégager la coutume internationale. Pour ce qui est des conflits entre les règles internes et les normes internationales, ils sont soit évités par des procédés d'interprétation, soit résolus en faveur de la règle interne, à l'exemple de la tradition judiciaire anglaise. Un arrêt récemment rendu par la Cour Suprême:* semble ouvrir la voie à une jurisprudence israélienne plus indépendante de la pratique anglaise en matière de droit international commun. Une telle libération sera-t-elle complète? Ira-t-elle au-delà du seul fondement juridique de l’application en Israël de la doctrine de l’incorporation? S’étendra-t-elle au contenu méme des normes internationales et des modalités de leur application en droit interne? L’avenir nous le dira.

139.

App.

Cr.

175/54,

P.D,

tome

10, p. 5-40;

v. supra,

p. 158—160.

DROIT

INTERNATIONAL

ABREVIATIONS

A.D. A.J.I.L. App. Civ. App. Cr. B.Y.LL. Civ. Crim. H.C. Hapraklit Jm. 0

R.A.D.I. 0% R.G.D.LP. T.A.

ET

DROIT

INTERNE

177

ET TRADUCTIONS

Annual Digest and Reports of Public International Law Cases. International Law Reports. American Journal of International Law. Appel Civil. Appel Criminel. British Yearbook of International Law. Jugement civil. Jugement criminel. Haute Cour de Justice (“Bet hamichpat hagavoah letsèdek”). Organe de l'Association du barreau israélien, publié à Tel-Aviv. Jérusalem. Journal

Officiel

de

l'Etat

d'Israël

(‘Itone

richmi”), paru en 1948-1949. En 1949 le Journal Officiel a été remplacé par la série des Documents Officiels qui comprend, entre autres, un Recueil des lois, un Recueil des décrets, et un Recueil des traités. Law Quarterly Review. “Piské-dine”: Recueil d’arréts de la Cour Suprême d'Israël, publié par le Ministère de la Justice. “Pesakime” Recueil d’arréts publié par l’Association du barreau israélien. “Pesakime” des tribunaux de district. “Pesakime” de la Cour Suprême. Palestine Gazette (Journal officiel de la Palestine sous régime de mandat britannique). Recueil des cours de l’Académie de droit international de la Haye. | Revue de droit international et de législation comparée. Revue générale de droit international public. Tel-Aviv.

MODERN TRENDS IN MILITARY LAW AND THEIR INFLUENCE ON ISRAEL’S MILITARY JUSTICE LAW M.

ZOHAR

INTRODUCTION

To a great many lawyers in Israel, and it may safely be assumed to a great many lawyers in other countries, the text of laws dealing with military criminal law, the procedure of courts martial and the system of courts martial generally, represent a “closed book”, which they have never opened, whose contents they have never been interested in, and whose institutions and concepts are unfamiliar to them. Moreover, despite this lack of familiarity (or, perhaps, because of it), there is a tendency to assume towards that system of laws an attitude not free from disdain, and the view is occasionally expressed among lawyers that “military justice ought not to be considered justice at all”. It is to be stressed,

however,

that the number

of persons

who hold such views and opinions on military justice is decreasing,

particularly

since

the

end

of World

War

II. This

change of attitude is partly due to the fact that in recent years military service has been extending to a great number of reserve duty soldiers’ who in consequence of their military 1.

Karten

and

Pepper,

The

Scope

of Military

Justice,

Crimin. & Police Science 285, 297 (1952): ... “at the peak of the World War II mobiliszation, ‘not only handled

one-third

of the nation’s

crime

43 J. Crim.

the armed

potential,

L.,

forces

but...

their

courts handled one-third of all criminal cases tried in the nation, with the remaining two-thirds being divided between 49 civilian systems”... . “the present state of mobilization must continue for some time to come, the conclusion seems justified that military justice is the largest single system of criminal justice in the nation, not only in time of war,

but

also

in time

see”. And see The Lewis

of peace;

| Committee

now,

and

as

far

ahead

as

we

can

Report (see below note 2) section 188 :

“Circumstances have changed since the Darling (Committee of 1919) and Oliver (Committee of 1938) committees reported. Service under the Natio-

nal Service to consider, no

one

Act in peace-time, the effect of which they did not have emphasizes the importance of the principle which we think

would

dispute,

namely

that

in the

matter

of

legal

safeguards,

citizens should be no worse off when they are in the Forces than in civil life unless considerations of discipline or other circumstances make such a disadvantage inevitable.”

MILITARY

LAW

179

service came in one way or another into contact with military justice. But this reason is neither the sole nor the main reason for the ascendancy of military justice in the eyes of the public generally and of lawyers particularly. I am of the opinion that the fact that the reform in the system of military justice has engaged the attention of a number of public committees, such as the Lewis committee? and also of the Legislature in England (in connection with the enactment of the Courts Martial

(Appeals) Act, 1951° and the

Army Act, 1955 *), in the U.S. (in connection with the enactment of the Uniform Code of Military Justice, ‘), and in our own country (in connection with the several amendments to the Emergency Regulation (Army Code 5708) (hereinafter referred to as the “Army Code” and the enactment of the Military Justice

Law,

5715—1955*

(hereinafter

referrd

to as

“M.J.L.”), has brought about the effect that the interest taken in problems of military justice and military law in general is no longer confined merely to such military circles as are directly concerned with them, but has permeated wide circles of lawyers and the public at large. In consequence of this interest, research into military law has been stepped up, the subject has been introduced into the syllabi of a considerable number of law schools*, and judges and jurists generally began to direct their minds to problems arising out of this branch of legal science. In the light of these developments, it seems desirable to 2:

An

abbreviated

name

of a British

Chairmanship of Mr, Justice Lewis whose the name: Report of the Army and Air

mittee, 1946, cmd. 7608. 3. 14 & 15 Geo. 6 ch, 46. 4. 3 & 4 Eliz. 2, ch. 18. 5.

An

act to unify,

Royal

Commission

under

report was published Force Courts Martial

the

under Com-

2

consolidate,

revise and codify the Articles

of War,

the articles for the Government of the Navy and the disciplinary laws of the Coast Guard and to enact and establish a Uniform Code of Military Justice, approved May 5, 1950 (64 Stat. 107). 6. Iton Rishmi No. 20 of 8.9.1948. Sefer Hahukkim [INo. 28 of 7.12.49. Sefer Hahukkim No. 58 of 18.8.50. Sefer Hahukkim

7.

Sefer

8.

No.

123

of 3.4.53.

Hatza’ot Hok No. 203 of 10.5.54. Hahukkim

No.

189

of 204.7.55.

See “The teaching of Military Law in a University Law School” by Frederick Bernays, 5 Journal of Legal Education, 475-499 (19521953).

180

M. ZOHAR

survey briefly a number of basic points which have lately engaged the attention of those who deal with this subject in the world generally and in Israel more particularly. 1. MAIN CHANGES IN THE SYSTEM OF MILITARY JUSTICE IN THE ENGLISH-SPEAKING COUNTRIES AFTER WORLD WAR ‫דד‬‎ It is not my intention, within the frame-work of this article, to survey the host of changes which were introduced in the military law of Britain and the United States from 1945 onwards (changes which were mainly expressed, for Britain in the Courts Martial (Appeals) Act, 1951 and the Army Act, 1955 and for the United States — in the Uniform Code of Military Justice, 1951). I do propose, however, to point out what seems to me the guiding thought and the common denominator underlying these changes, to the extent to which this is necessary for the understanding of the basic concepts of our military law. On reading the records of the many discussions that preceded the passage of these laws, one is struck with the following thought that recurs again and again: since the extension of compulsory service, there has been an unprecedented extension

in the number

of civilians

who

are

made

subject

to military jurisdiction (when compared with their previous number), and in order to secure the civil rights of those citizens, it is necessary that military jurisdiction should (a) resemble, as far as possible, the general jurisdictional patterns in the country, and (b) should, as far as possible, be subject to the control of a high-level judicial body whose independence from the army is beyond doubt. As against the desire for the “assimilation” of military justice, and for its approximation to the general jurisdictional pattern prevailing in the country, there arose in both countries an opposition consisting of persons of divergent political views (Conservatives and Labourites in England, Republicans and Democrats in the U.S.° whose only common denominator was the fact of their former army service for a 9.

A

remarks Act,

typical

made

1955,

example

by one

in the

British

“but a court-martial

ing officer’s

of these

report,

can

be

found

in the

in the

debate

on

following

the

Army

Parliament:

is the next and

views

of the participants

stage

it is essential

up the list from that

the

the command-

court-martial

should

re-

MILITARY

LAW

181

more or less lengthy period in comparatively high positions of command, which enabled them to see the probl ems of military justice from “above”, as distinct from perso ns who had served in the army in lower ranks and positions, who view military justice from “below”, and whose opinions on the subject are generally identical with those of “civilians”. (The circumstance, observed by this writer, that long servic e in commanding positions in the army, causes persons who generally hold progressive opinions and ordinarily advocate radica l changes in political life, to be rather conservative when it comes

to military

justice,

calls

for an

explanation).

Be it as it may, this opposition has necessarily constituted a restraining factor on far-reaching proposals for changes in the system of military justice, and therefore such far-reaching proposals were only partially adopted. The resulting legal position can therefore be viewed as a compromise between mutually opposing trends. It was for these reasons that not all the recommendations of the Lewis committee were adopted, and in fact one could point out only the following two changes of principle which prevailed over the previous position: (a) The introduction of an appellate instance into the system of military justice

(which

did not exist beforehand)

and

the investing of appellate jurisdiction in a purely civilian court on whose composition the army has no influence. (b) The ditferentiation between the Judge Advocate General

(who,

by the way,

is a civilian

and

not a soldier)

and

the Director of Military Prosecution. Similarly, the principal change that was introduced in the military justice system in the U.S. was the establishment of the Court of Military Appeals’®. Although this court has main the court-martial of the Army or Air Force and not a legal court”. Hansard,

House

of Commons,

No.

3304

of 18.11.54,

Page

1608.

10. See the following remarks of Robert E. Quinn, Chief Judge, United States Court of Military Appeals, in an article published by him under the title “The Court of Responsibilty”, in ‘A Symposium on Military Justice”, 6 Vanderbilt Law Review 161 (1952-1953) : “The United States Court of Military Appeals has been referred to as the

‘most

vital

element’

in the

reformation

and

unification

of

military

criminal law brought about by the Uniform Code of Military Justice. It represents a further extension of civilian control over the military — a concept

long

government.”

deemed

vital

to

the

American

framework

of

democratic

182

M.

ZOHAR

jurisdiction to hear appeals from military courts only, all its judges are civilians (or in the language of the law: “from civilian life’) and are not subject to military authority. On the other hand, the office of the Judge Advocate General in the U.S. as previously established, was left untouched, and he remains a high-ranking officer with extensive powers, not only in matters of prosecution and defence in various military courts, but also in respect of army contracts, patents, military government and even foreign affairs. 2.

FUNDAMENTAL 5708-1948,

PRINCIPLES

OF

THE

ISRAELI

ARMY

CODE,

The Army Code which constituted the first military justice code of Israel Defence Forces (I.D.F.) and which goes back to the regulations that were in force in the pre-State Jewish underground organization — the Haganah — was founded on the principle of “self-sufficiency” of the I.D.F. in matters of jurisdiction. For this reason, not only can no connection be found between the system of military courts and the system of ordinary courts (a connection that was obviously impossible in the Haganah),

but also within

the framework

of

the I.D.F., army courts — in theory, at least — were not concerned with the legal training of their members. Therefore, it was possible, again, in theory, for a soldiers to 6 found guilty of a most serious offence (e.g. treason) and to receive the maximum sentence (death by shooting) at the hands of a court on which there sat not a single legally trained member. Moreover, such a sentence might be confirmed on appeal by a higher military court, again without a single legally trained member. There was likewise no legal training required from the prosecutor or from counsel for the defence. It was only one of the subsequent amendments to the Army

Code :!, that established the office of a Chief Military Attorney (regulation 169a), who had to be a person with legal training (reg. 169 d) and whose opinion had to be accepted by the authority competent to confirm judgment prior to confirmation of any sentence (reg. 171 0(. 11.

Sefer

Hahukkim

No.

28 of 7.12.49.

MILITARY

LAW

183

It was a later amendment to the Army Code™, relati ng to the trial by court martial of reservists not on active service, that allowed in one particular instance appeals from the Supreme Military Court to the civilian Supreme Court sitting as a Court of Criminal Appeals (reg. 3 d). Such an appeal was permitted on one ground only, i.e. , on the ground that the act or omission which constituted the offence was committed or omitted by the alleged offender otherwise that in consequence of his being a reservist (reg. 3(d) (a)). It may be noted in passing, that these particular provisions remained a dead letter, and throughout the period during which they were in force (1.9.50—31.12.55) not a single instance of their application is on record. On the other hand,

however,

the Army

Code

invested

the

Disciplinary Officer with the status of a judge #. The sentence imposed by a Disciplinary Officer was considered res judicata; appeal lay, but only by leave, to the Military Court (reg. 14); and the judicial immunity of such an officer was co-extensive with the immunities of a judge (reg. 41). 3. THE

SOLUTION

MILITARY

A.

OF

JUSTICE

THE

FUNDAMENTAL

PROBLEMS

IN THE

LAW.

General

Faced with the necessity of solving some fundamental problems, the Israeli legislator had at his disposal the following two facts which served as natural points of departure: (1) The solutions which were furnished by the Army Code proved in general satisfactory to all concerned

and, through-

out the period of seven years during which the Army Code was in force, never caused any serious harm. (2) The changes and tendencies which found their expression in the military codes of Great Britain and the United States, necessarily had to be given great weight by the Israeli legislator both because of the general affinity which exists between Israeli law and the Anglo-American legal systems 12. 13.

Sefer Hahukkim No. 58 of 18.8.50. pr was upheld in one of the judgments

Justice.

H.C.

9 P.D.

1118.

94/55,

Zion

Darai

v.

The

Minister

\ of the High of Defence

Court

and

of

others,

184

M.

ZOHAR

and because in its constitution and organization the I.D.F. largely follows the example of the armies of those states.

It would be worthwhile to point out at this stage that in the Special Committee on the Military Justice Law set up by the Knesset after the first reading of the Bill, there appeared the division into former soldiers and into lawyers without previous army experience, that had existed in the Parliamentary Committee in Britain and in the Congressional Committee in the United States. In my following remarks, I shall try to demonstrate how and in what way the Military Justice Law had solved the main problems and what were the reasons for it. B.

The Status of the Court of Military Appeals The Military

Justice

Law

provides

for the establishment

of an Appeal Court Martial which is the only and highest court of appeal from all courts martial of first instance (District Court Martial, Special Court Martial, Naval Court Mar-

tial and Field Court Martial (sec. 183). The Court consists of Military Judges with legal training and of Military Judges who are not so trained (sec. 213). It is further provided that in every sitting of the court there must always be a majority of judges with legal training (whenever the court consists of three judges — at least two, and whenever the court consists of five judges — at least three) (sec. 216). After a certain transitory period the trained Military Judges shall enjoy relative permanence, with a 10-year tenure (sec. 189). During that period they may not be removed except on certain limited grounds enumerated in the law, such as discharge for health reasons, (sec. 192) or as a result of proceedings in a Disciplinary Court (sec. 191). All judges (including, needless to say, the judges of the Appeal Court Martial) are granted complete independence in judicial matters, and they are not subject in any way to the authority of their commanders (sec. 184). The above provisions ensure that every appeal shall be heard by judges of adequate professional competence. In this way the proper operation of the Military Justice Law is secured and real progress is made as compared with the state

MILITARY

LAW

185

of affairs which existed under the regime of the Army Code: supervision over the courts of first instance is exercised now by a judicial body independent of other military authorities. Nevertheless, when comparing the position prevailing in Israel with the position existing in Britain and the United States, we find the following important differences: (1) In those countries the judges of the military courts of appeals are all civilians who are appointed by a civilian authority, whilst in Israel the legally trained military judges are all army officers appointed by the Chief of the General Staff (sec. 187).

(2)

At the apex of the military court system

in England

and America we find a fully trained judge, who in the ordinary course of affairs is the senior and the most experienced member of the court, whilst in Israel the President of the Appeal Court Martial is a military officer appointed by the President of the State on the recommendation of the Chief of the General

Staff, as transmitted

by the Minister

of De-

fence (sec. 185). There is no provision that such an officer shall be a person with legal training, and the provisions regarding the tenure of legally trained military judges do not apply to him. It should be pointed out that the Military Justice Law does not provide for appeal from the Appeal Court Martial to the civilian

Supreme

Court,

and

even

the

limited

possibility

of

appeal which was provided for in the Army Code (as above mentioned) has been repealed. It is for this reason that the Supreme Court has no way of intervening in the system of military justice, except for such supervision which, when sitting as a High Court of Justice, it exercises on application in the nature of certiorari or prohibition. (For accuracy’s sake and ex abundante cautela it might be mentioned that in two cases the Military Justice Law provides for the functioning of individual justices of the Supreme Court in matters of military justice: section 191 provides that a judge of the Supreme Court, appointed by the President thereof, shall be a member of the Court of Discipline for legally trained judges of courts martial; and sec. 317(b)(1) provides that a judge of the Supreme Court, elected by the body

186

M. ZOHAR

of judges thereof, is to act as Chairman of the Committee for the Approval of Courts Martial Defence Counsel). Why was such a solution to the problem of the Appeal Court Martial adopted, a solution that has no counterpart in other countries? No complete answer to this question can be found in the Knesset proceedings (Izhar Harari, M.K., was the only member who touched upon the legal qualifications of the President of the Appeal Court Martial in Knesset meeting no. 616 of 21.6.55, and was answered by the chairman of the Special Committee for the Military Justice Law, Jacob Shapira, M.K.** but, on the basis of the deliberations which preceded. the preparation

of the Bill as well as on the basis of deliber-

ations in the special Knesset Committee, following conclusions:

one may

reach the

(a) The transition from an appeal court martial, for which the law did not require the participation of any lawyer, as was the case in the days of the Army Code, to an appeal court martial consisting of civilian-lawyers as judges, would have been too steep and sudden, and would have been deemed inconsistent with the tendency towards gradual evolution in the development of legal institutions. (b) The particular security conditions in which the State of Israel finds itself, demand a strict guarding of military secrets within the framework of the military organization. This circumstance makes it undesirable to have military secrets deliberated upon in the course of the hearing of appeals before a civilian forum.

(c) The particular constitution and way of life of the I.D.F. in its manifold manifestations — Gadna (Army Youth Orga-

nization),

Nahal,

service

in border

settlements,

vice Without Pay), compulsory service for women

Shalat

(Ser-

etc. —

de-

mand from judges a familiarity with conditions of the army

and an understanding of its way of life which one cannot expect generally to be found amongst civilian judges , especially today,

so soon

after the establishment

of the state, when

it

is impossible for the majority of civilian judges, and in parti14, Divrei 15 and 16.

Ha-Knesset,

Vol.

XVIII,

p,

1964

—

see

infra,

footnotes

MILITARY

LAW

187

cular of the Senior judges, to have had military service experience within the framework of the I.D.F. (3)

Taking

into

account

the

limited

manpower

generall

available to the LD.F., number of offi-| di A particularl y the limited imi cers with legal training, the Army

authorities were unable to

undertake to appoint a President of the Appeal Court Martial who would possess both the necessary legal qualifications and the general military experience, authority and seniority required of the bearer of this high office . In the face of these

difficulties, the military authorities thought that where a person with both attributes cannot be found, it is preferable, dur-

ing this formative period of the I.D.F. — a period in which Courts Martial play a particularly important role — to have an officer with general military knowledge and experience, than to have a lawyer who lacks these qualifications. This opinion has been assented to by the legislature in its enactment of sec. 185 of the Military Justice Law. *° If my above conclusions are correct, then taking into consideration that the reasons mentioned are of a temporary nature and are linked with the transitional period of the establishment of the State and the I.D.F., it may be assumed that they are not the last word of the Israeli legislator regarding

the constitution

and status of the Appeal

Court Martial.

It

may be expected therefore, that in the course of time our so15.

Divrei

Ha-Knesset . . The

.

M.K.:

Harari

by the words of the Chief ed that it is difficult to commander’s prestige and Shapira M.K.:... in Military

Court,

of

the

ibid: majority

entire

of

requires

that this officer

army.

Committee

the

were

impressed

of awe

and disci-

of Staff, who appeared before them and argufind a person who will have both a military : also legal training”. order to act as the president of the Supreme

an office which

pline, it is necessary heart

—

The

army

the inspiration

be able to implant order

requires

that

them he

in the

must

be

not only an officer of rank but also a person with “military authority”, and it is apparent that the combination of these two qualifications is there.”

not

Begin M.K.: “. .. might not be there”. 16. Divrei Ha-Knesset—ibid : Shapira M.K.: ... The Chief of Staff had promised the Committee, on

behalf

of the

Minister

of Defence,

and

I say

this in the presence

of

the Minister of Defence, that prior to making a recommendation for the appointment of a president of the Supreme Military Court, he will not

only

give

priority

to a person

with

legal

training,

but

also

that,

if he

appoints a person without legal training, he shall order him to study law, though not by way of going to a university and of passing examinations ...”

188

.

M. ZOHAR

lutions will become more closely approximated to those reached in the military law of the English-speaking countries.

C.

The Status of the Military Court of First Instance.

From the point of view that interests us, Courts Martial of first instance may be divided into two categories:

(1)

Ordinary

Courts

Martial,

which

function

continuously

and possess a permanent organization. This category includes the District Courts Martial and the Special Court Martial. (2) Extraordinary Courts Martial, which are set up ad hoc from time to time, in particular circumstances provided for in the law. The category comprises a Naval Court Martial and a Field Court Martial. The power to constitute or convene extraordinary Courts Martial is generally entrusted to the competent commander. There is no obligation to include as members persons with legal training, although if such persons are available, it is desirable to have them take part in these proceeding (sec. 407, 465.). The position regarding ordinary Court Martial is different. Here the legislator, as if to compensate for his assenting to the Appeal Court Martial staying within the framework

of the I.D.F., has deviated from the models provided in Anglo-American system. In that system, the convening and ap-

pointment

of such a court is completely within

the authority

of the Commanding Officer who convenes and appoints it according to his judgment and discretion (sec. 86 of the Army

Act,

1955;

art.

22 of U.C.M.J.).

Likewise,

the

Commanding

Officer is given there very wide authority regarding the sentence passed by the Court: he may affirm it or not, reduce the sentence or modify it, and his powers include the power to order a retrial. The Military Justice Law, on the other hand, provides that at the head of a District Court Martial there shall be a President who is an officer trained in law, appointed to his office by the Chief of Staff on the recommendation of the President

of the Appeal

Court Martial

(sec. 186). The

presidents of the District Courts Martial enjoy relative permanency of tenure similar to that accorded to the Judges of the Appeal Court Martial with legal training (sec. 189(2). The President of the District Court Martial is the “appointing authority” i.e. he, and he only, designates the three judges

MILITARY

LAW

189

who are to sit on any particular case, and no one is entitled to interfere with his determination (sec. 200). Generally one judge with legal training must sit on every case (sec. 202). It is only in exceptional circumstances that the President, having received the opinion of a Military Advocate, may appoint a court that does not include a legally trained Judge, provided he sets out in writing his reasons for doing so (sec. 202). The President of the District Court Martial issues the administrative regulations of his Court (sec. 199). The Officer Commanding a territorial Command or a Force retains three powers: he is the “convening authority” 1.6., he appoints, on the recommendation

of the President

concerned,

the panel of

the military judges (sec. 198); he fixes the time and the place for the sitting

of a particular

court

(sec. 204,

309);

and

a

final conviction no longer subject to appeal is put before him for possible mitigation of the sentence (sec. 441-442). Thus the Military Justice Law establishes the independence of the Courts

Martial

of first instance,

even

with

regard

to

administrative matters, and their status in this regard does not materially differ from that of the Apeal Court Martial. D.

Subordination of the I.D.F. Judicial System to the Military Authorities

To sum up the way in which the system of Courts Martial is subjected to the military authorities, these maint points may be stated: (1) At the appex of Courts Martial there stands an I.D.F. officer, appointed to his office on the recommendation of the Chief of Staff. This officer need not have any legal training, nor does the law grant him tenure of office for a predetermined period. Nevertheless he has powers of command over the Courts Martial unit in accordance with Army Orders, and in addition is authorized by law to make rules for the administration of the entire Court Martial system (sec. 211). It follows, therefore, that the competent military authorities may, by recommendation, have an officer appointed to the office of President of the Appeal Court Martial who holds definite views on the functions of the Courts Martial and who may influence the administrative workings of that system.

190

M. ZOHAR

(2) All Judges in all Courts Martial are soldiers, and the Military Judges with legal training must be officers. The fact that the judges are subject to the general discipline prevailing in the army — to which they are usually tied by considerations involving their future and their advancement in rank and office — lends to the views of the military authorities an emphasis and an influence, for all the absolute independence which these judges enjoy in the performance of their judicial functions.

(3) All legally qualified Judges are appointed to their respective offices by a miltary authority (the Chief of Staff) on the recommendation of another military authority (the President of the Appeals Court Martial).

(4)

Subject to the powers of the special judicial authorities

(the President of the Appeal Court Martial, the President of

the Special Court Martial and the President of District Courts

Martial) the general military authorities (Chief of Staff, Officer Commanding of a Command and the Commanders of the Air Force and Navy) enjoy certain limited powers with regard to the judicial process in the I.D.F.: they act both as “convening authority”, thus determining when and where trials are to be held, and as “confirming authority” authorized to

mitigate the sentences imposed.

In comparing these powers of the I.D.F. authorities with powers enjoyed by the corresponding military authorities in English-speaking countries, we find again that the authority of the commanding levels is rather limited as regards the courts of first instance,

but it is much

wider

when

it comes

to the appellate instance. 4. THE

INFLUENCE

CIVILIAN JUSTICE.

(a)

AND

OF

THE

MILITARY

MILITARY OPINION

JUSTICE REGARDING

LAW ON MILITARY

The attitude of military opinion towards military justice The provision, in the Military Justice Law, for the participation in almost every sitting of an ordinary Court Martial of a legally trained military judge, has resulted in a general ly strict observance of procedural rules and in the scrupul ous

MILITARY

LAW

191

maintenance of the rights of the accused at each stage of the proceedings. On

the

other

hand,

the lay judges

who

sit on

the bench

together with the legally trained judge tend to lean too much on the latter, and their participation tends to become rather

passive and sometimes may not be felt at all'7. This is not

surprising, since the legally trained judge develops a reputation amongst the other judges not only because he is the professional lawyer amongst them, but also because he is usually the senior member of the court, quite often outranking one or both other judges very considerably. This being so, the lay judges occasionally do not take the trouble of going deeply

into the legal or even

into the factual

problems

before them, and when they do express an independent view, they confine themselves, in a large number of cases, to the nature and extent of the penalty to be imposed. This frustrates the original intent of the legislator who aimed at a Court Martial consisting of three judges, each with an equal right to express his opinion, who through concerted effort and thought,

should

reach

a result consistent

both with the ends

of justice and with military interests. Unfortunately the damage, serious as it may be in itself, does not stop there. It also affects the general military atttitude toward court martial: despite the fact that representatives of the military participate in every military trial, and despite the fact that the legally trained judge is an army officer, wide military circles have a certain feeling of “strangeness” about military courts, —

an attitude more

characteristic

of those European

countries in which the military justice system depends for its operation on professional jurists than of England and the United States. There can hardly be any doubt regarding the negative effect of the situation noted. It may reasonably be asked, then, whether it would not be desirable, from a psychological point of view at least, to adopt the solution in use in England and America, where the lawyer does not form a part of the court martial, but merely serves as its professional adviser “Professional and Unprofessional Judges Cf. Dr. M. Zohar: 17. Courts Martial” (in Hebrew). Maarachot no. 93, June 1955, pp. 46-52.

im

192

M. ZOHAR

(“Judge Advocate” — as in section 104 of the Army Act, 1955, “law officer’ — as in article 26 of U.C.M.J.) By having a legal adviser, the court gets the necessary guidance that it needs in order to conform to proper procedure, but both the court and the public at large realize that the court’s decision is the decision of the lay judges and their only. On the other hand, the introduction of a “legal adviser” would further complicate the already cumbersome procedure of the court: it would require the drafting of rules for the determination of the adviser’s authority. This might give added

grounds

for

appeal,

such

as

that

the

“adviser”

ex-

ceeded his jurisdiction, gave improper guidance, exercised undue influence on the court or, on the contrary, did not give sufficient guidance etc. In other words, there will arise a state of things with which Anglo-American precedents have made us only too familiar.

(b) The attitude of civilian opinion toward military justice The changes introduced into the system of military justice, the extent to which it is now modelled on the system of civil courts, and the modification of military procedure, did not reach the consciousness of the majority of the civilian public or even of civilian lawyers. Here are a few reasons for this fact:

(D The general public does not take any special interest in the problem of military justice except in extraordinary cases (such as the case arising out of the Kefar Kassem incident). Because military courts are usually located in army camps far from the main cities, the general public and even journalists, are usually absent from the proceedings, despite the fact that trials are generally open to the public. (2)

The general public draws no distinction between military

trials conducted against accused soldiers under the Military Justice Law, and military trials conducted against civilians in accordance with other laws (such as the Defence (Emergency) Regulations, 1945, ‘8 Prevention of Infiltration (Offences

and Jurisdiction) 18.

Palestine

19.

Sefer

Law,

Gazette

Hahukkim

5714-19541,

1442 no.

161

of 27.9.1945, of 26.8.54.

Prevention Suppl.

of Terrorism

IT, p. 1055.

MILITARY

Ordinance, latter.

5708-1948°°)

and

LAW

193

equates

the

former

with

the

(3) There may exist a tendency, possibly inherited from the Eastern European diaspora or from the period preceding the establishment of the State, when Jews knew military tribunals

of the worse type only, to see every military trial as a strict administrative process in which the rights of the accused were not properly secured and which had as its main purpose the intimidation of the public. For these reasons, the general public’s view towards military justice, even if not basically negative, is one that accords to military courts a much lower evaluation than to other . courts of the State. This attitude used to permeate the general body of lawyers in the country and particularly those who did not keep in daily touch with military justice, and used to manifest

itself

even in the standing of military lawyers amongst their professional colleagues. In recent years, however, there has been a marked improvement in this atttitude. The study of military law (as an optional subject) has been introduced into the curriculum of the country’s law schools; professional law officers in the army have been accorded equal professional status with law officers in other public services’; and the Military

Advocate

General

has been

appointed

an

ex officio

to reach

the stage

member of the Law Council. ?? More

must

be done,

however,

in order

when military lawyers shall be regarded as persons who have chosen to specialize in a branch of legal science that is not inferior either in its importance or in its standing to any other branch of juridicial science. This is vital if larger number of lawyers of standing are to be attracted to this particular branch of law.

20. Iton Rishmi no. 24 of 29.9.48, Supp. I. 21. Judges’ Regulations (amendment) 5716—1956. Kovets Ha-Takanot no. 611 of 7.6.56, p. 844, Law Council Regulations (amendment), 5716— 1956.

22.

Reg.

61(a)

Yalkut

(2), Kovets

Ha-Pirsumim

Ha-Takanot

no.

no. 292 of 22.5.53,

629

of 16.8.56,

p. 998.

p. 1140.

194

M.

ZOHAR

CONCLUSION

It was not the purpose of this survey to give a general picture, albeit on broad lines, of the Military Justice Law, and not even a full list of all the innovations introduced by that law will be found in the present survey. I merely intended to point out how some basic problems which engage the attention of military lawyers the world over, were solved in the Military Justice

Law

of Israel,

and to indicate

possible

pat-

terns of development of Israeli military law with reference to these problems. The period of operation of the Military Justice Law is altogether little more than 2 1/2 years — a period far too short to evaluate the shortcoming and qualities of that ra-ther extensive document. It may, therefore, be safely assumed, that another year at least shall be required, before it is possible to put forth suggestions for amending the Law, unless some catastrophic fault will appear in its mode of operation that will demand immediate repairs (a thing which so far has not happened). Even at this early stage, however, and while fully cognizant of the particular conditions of Israel and of its Defence Force, we are not relieved of the duty to apply our minds to the tendencies and patterns that dominate the development of our military law.

SPECIFIC PERFORMANCE OF CON TRACTS IN HEBREW LAW AND IN THE POSITIVE LAW EFFECTIVE TODAY IN THE STATE OF ISRAEL by ZORACH I.

WARHAFTIG*

Introduction:

It is the prevalent view of contemporary legal theory that the primary result of a breach of contract is and should be the forfeiture of a sum of money either as a penalty agreed upon at the outset, or as damages. Most legal systems do not eye favourably the compelling (ordering) of specific performance of contracts, the obligation in natura. In the enforcement of specific perforances of contracts, they see a confusion of the realm of the theory of obligations with that of the principles of the theory of property. Roman Law placed especial emphasis on the condemnation ad tantam pecuniam, and even in the arbitrary claims, actiones arbitrariae, the main thing was the pecuniary condemnatio in the event that the defendant did not return the res. Following the lead of Roman Law, most of the continental legal systems, and foremost of all the French Codex, recognized monetary payment in effect as the only means of compensation for a breach of contract. (See Section 1147 of the Code of Napoleon). Money is the answer to everything. In this respect, the approach of English law is most

unique,

in that in the domain

of the doctrines

of equity,

there developed the institution of “Specific Performance.” English Equity took cognizance of the fact that not in all cases could pecuniary payment suffice to indemnify the party desiring the performance of the contract. A grave injustice would in some cases be suffered by the innocent party who entered into a contract in full trust and confidence that it would be fulfilled, discharged the obligations incumbent upon him as party to the contract, perchance * This study is based on a paper read by the author at the Second World Congress of Jewish Studies, in Jerusalem, in 7.

196

ZORACH

even

performed

actions

WARHAFTIG

which

were

irrevocable

and

now

was faced with the refusal of the other party to live up to his end of the contract. Not in every case could money rectify matters. Therefore, English Equity intervened and granted the party who fulfilled the contract, an “equitable remedy” in support of his demand from the party to the breach, to perform the contract specifically and literally. The principal elements of the English institution of “Specific Performance” are: — 1)

“Specific Performance” is theoretically an alternative remedy to a claim for damages. It is based on the premise that damages are not always adequate compensation for a breach. Whence it follows that wherever damages are capable of fully compensating the injured party, there is no room for a request for specific performance. 2) The inference is, that specific performance is a remedy subject to the discretion of the Court. The judge is the one to decide whether the contract belongs to that category of contracts which cannot be adequately compensated for, by the payment of pecuniary damages. He must also weigh whether there do not exist other grounds which negate the claimants’ right to an equitable remedy and whether the case should not revert back to the original rule of pecuniary damages. It is true that the development of the law has been in the following direction, that in land contracts, the Court applies the principle of specific performance almost always “almost

without

exception”,

“almost

as a matter

of course”,

“in general’?. Nevertheless, the caution indicated by the “almost”, is a proof that this institution has not become an absolute instrument and has left intact in the hands of the judge the discretion with regard to the evaluation of the contract

and

its

results.

Whereas,

the

breach

of

contract

carries in its wake a claim as of right to damages, the claim to specific performance is subject to the discretion of the Court. ? The remedy of specific performance of the contract has 1. Quoted from the Khujainov v. Aaronov,

2.

Aron Polonsky,

English Rives 9 P.D. 419.

by

Specific performance,

Cheshin,

J. in

C.A.

SE

2 Tel-Aviv,

1938, p. 18.

SPESCIFIC

PERFORMANCE

IN HEBREW

LAW

197

been introduced into the legal system of the State of Israel by way of article 46 of the Palestine Order-in-Council 1922 and Section 11 of the Law and Administration Ordinance 5708-1948. Article 46 of the Palestine Order-in-Council 1922 opened before the Palestinian Courts the possibility of applying the principles of equity current in England in those cases not governed

by

statute,

whereas

section

11

of

the

Law

and

Administration Ordinance 5708-1948 declared that the law in existence in Palestine at the time of the establishment of the State would continue in force until changed by statute. Article 46 above was intentionally enacted to serve as a conduit through which would stream the concepts of justice and equity prevailing in England and the Mandatory legislator regarded this article as an important means of enriching the law of Palestine with the remedies granted in England in virtue of the common law and equity. * The Supreme Court of Israel also regards article 46 as “a window opening on a richer legal system”. The remedy of “specific performance’ is regarded by Israeli jurists as one of the most important institutions wherewith the law in the State of Israel has been enriched as a result of the link with English equity by way of the above article 46.° The remedy of “specific performance” passed in Palestine and Israel through a number of stages of development. At first the Court tried to restrict the remedy to those contracts in which the following conditions were present: The contract of sale was valid, the entire price had been paid and the buyer was in full possession of the property, or there had already been part performance of the contract and it appeared to the Court that pecuniary payment was an inadequate compensation to the party upholding the contract. Others added the condition that nothing had been left to be done for the complete fulfillment of the contract except the official transfer of the land on the buyer’s name. ° 3, Farouki v. Ayoub (P.C. 1/35 P.L.R. 390). 4, Cheshin, J. in C.A. 89/49, 4 P.S.C. 50. 5. Cheshin, J. in Bornstein v. Custodian of Israel, C.A. 51/48, 1 P. 429, 433. 6. ibidem.

Enemy

Property

in

198

ZORACH

WARHAFTIG

However, the employment of the remedy of specific performance with regard to land has become more prevalent especially since the establishment of the State of Israel. The Courts have begun to waive the conditions of possession of the land by the buyer and payment of the entire price, and have accepted the principle that receipt of pecuniary damages cannot be adequate compensation for the loss of the land and have applied it even in the case of a land speculator. * In the short

analysis

below,

we

shall

attempt

to demons-

trate that the institution of specific performance of contracts exists in Hebrew Law in a form more perfect and more in consonance with our Jewish outlook than that in English Equity and that without Article 46 of the Palestine Order-in-Council, this institution could have been drawn direct from the sources of Hebrew Law.

II.

Specific Performance

of Contracts in Hebrew

Law: The basic source dealing with the matter is to be found in

the Talmud

Bavli, Tractate

Abodah

Zarah

72, a, (end of the

3rd Century).® “One man said to another — if I sell this land, I shall sell it to you.” Later he went and sold it to another. Rabbi Joseph declared: “The first one has the right to the legal title.”

Said Abayah to him:

“but there had been no fixing of the

price? “... One man said to another: “If I sell this land. I shall sell it to you for one hundred zuz.” Later he went and sold it to another for one hundred and twenty. Rabbi Kahana declared that the first one had the right to the legal title. Rabbi Jacob of Nhar Pkod demurred: “but the vendor acted under the compulsion of a higher price!”, and the law is according to Rabbi Jacob’s opinion.” We are thus led to infer from the first mentioned incident that it was only because the sales’ price had not been decided 7. 10 note

8.

ibid; Silberg, J. in Perchodnick vy. Ackerman, C.A. 155/52, P.D, 81. Cheshin, J. Choujainov v. Aaronov, C.A. 185/52, see (1) above.

According

to the participants

in the

discussions.

SPESCIFIC

PERFORMANCE

IN HEBREW

LAW

199

and agreed upon, a fundamental element in every contrac t of sale, that the party to the first contract had failed to establish right of title according to Abaya, but an agreement to sell in which the price is fixed assesses legal validity and the first party to it is entitled to the property against all subsequent buyers. The vendor must perform the contract specifically in natura. Undoubtedly, the second incident restricts the principle of Specific performance to the case where the vendor has contracted to sell to another for the same price he had agreed upon with the former, but if he has contracted for a higher price, the latter enjoys right of title. However, this limitation stems

from

the conditional

character

of the agreeement,

“if

I will sell, I shall sell it to you.” But if he does not wish to sell, there is no obligation whatsoever on him to sell to the former. Whence it follows that the will to sell must be free from all outside pressure. If then he is offered a higher price, this too can be considered a form of outside pressure. Hence the condition, “if he will sell”, has not been fulfilled, seeing that his will to sell is not completely unfettered but is under “the compulsion of a higher price.” From this it can be properly inferred that if he made with the former buyer a contract to sell or a contract promising to sell coupled with a fixing of the price but without conditioning it on his will to sell, the contract would be valid and specifically enforceable against any third party who later contracted with the vendor even for a higher price. This inference can be drawn from Rashi’s (Rabbi Salomon

Itzhaki, 11th century), commentary, ibid,: “He who gave to sell it and so no intentions of its real (agreed

the vendor one hundred twenty forced him long as he was not offered this sum, he had selling. By “if I will sell it’, he meant at upon) value etc.”

Similarly the Rambam

(Rabbi Moses, son of Maimon, 12th

century) explains the matter: “If he sold it for more than a manna (one hundred the latter reserves the title because he had promised the mer only if “he will sell”, viz. that he will freely intend to it. But here he had no such original intention to sell and

zuz) forsell did

200

ZORACH WARHAFTIG

so only because he received more than it was worth; wherefore he is like one who sold under compulsion.”? And in yet clearer language does the Maharik (Rabbi Joseph son of Shlomo Cologne, 16th century) expound the matter in a responsum: “For there (in tractate Abodah Zarah), the reason is because he had told him previously, “if I sell” and therefore it is concluded that “the money compelled him;” for from the very first he had rested the transaction on the existence of his will to sell and therefore Rabbi Jacob of Nhar Pkod said that the money compelled him, seeing that he did not want to sell it for its real value of one

hundred.

His succumbing

to the

temptation of selling for one hundred and twenty, ie., above its real value, was like selling under compulsion as the Rambam pointed out. But here

(the case under review) where they

both agreed not to sell except one to another

for such and

such a sum, they did not predicate it on the existence of any

will to sell, but simply agreed not to sell at all except one to another for the said sum. Most certainly there exists no room for distinction between selling at the par value or above par, for in any case he is not fulfilling an express condition not to sell at all. Verily, supposing one were to take an oath or swear not to sell at all, is it conceivable that he would be permitted to sell for more that its worth etc.” !° The Maharik’s opinion was summed up by the Ramah Rabbi Mosheh Isserles of Cracow 1530-1572) in his work “Darchei Mosheh” as follows: “.. but if he stated that you should sell only to me for such and such, certainly he cannot retract, even if he is offered more.”1 Also the Codificator, (author of the accepted codification of Hebrew Law, the Shulchan Aruch, Rabbi Joseph Caro Safad, 1488-1578) quotes Maimonides and adds: *. . . and

so explained

Rashi,

and

in our

case

too

where

9, Mishne Torah, Laws of Sale, chapter 8, section 7. 10. Responsa of Rabbi Joseph Cologne, Lemberg ed., 1798, Principle 20, section 8, 11. Darchei Moshe on the Tur Choshen Mishpat, Chapter 206, subsection 2.

SPESCIFIC

PERFORMANCE

IN HEBREW

LAW

201

he did not stipulate “if I will sell”, there is no room

that he was

compelled

Also the Mahara

to say

by money”.

Sasson

(Rabbi Aaron

Sasson

of Salonika,

17th century) concludes that if he obligated himself to sell unconditionally, he is obliged to “sell to the first buyer and cannot sell to another even for a more exorbitant price’”.** In conclusion then, we must distinguish between a contract of sale, more exact, an agreement to sell which is enforceable in natura both with respect to the vendor and a third party buyer and an agreement to sell on condition that the vendor intends to sell which will be enforceable only if it can be shown that the vendor has agreed to sell the res on the same conditions which he had previously stipulated in the former agreement. To make the distinction more palatable, it would be meet to point to a similar case that was dealt with in the Supreme Court recently. The Supreme Court decided that an obligation found in a contract for lease whereby the lessor promised the lessee of part of an apartment priority over all others, to the rest of the aparement which was at the time held by another lessee if it would be put up for lease, was to be regarded merely as an option to lease that was dependent on certain conditions and that so long as it was not proved that the room was up for lease after the previous tenant had vacated, the time had not yet come for exercising the option. *

III.

Conditions

for specific enforcement

of Contracts

Validity of Contract

The first condition for ordering the specific performance of a contract is the legal validity of the contract. This condition exists both in English and Israeli law’. In respect of land, according to the provisions of English and Israeli law, there must be a valid contract of sale in writing, or even an oral contract if it has already been partly performed. *° 1859, Chap12. “Avkat Rochel” by Rabbi Joseph Caro, Leipzig ed., ter 123, p. 113. Venice ed. 13. “Torat Emet”, Responsa of Rabbi Aaron Sasson, 1626, chap. 133 end. 14. Bistrizer v. Vitriol, C.A. 170/55, 11 P.D. 429-430. C.A. 195/40, 15. Per judge Manning in L.A. 1/36, 3 P.LR. 178; 435. P. 1 51/48, 7 P.LIR. 531; C.A. 16. ibid: p. 435. Polonski ibid. p. 23.

202

ZORACH

WARHAFTIG

Hebrew Law also requires validity of contract. In the above portion of tractate Abodah Zarah, the commentators emphasize that the obligation “I shall sell it to you” was confirmed by a Kinyan (ceremonious formal act endowing agreement with legality). Such is Rashi’s comment on the spot:

“I shall sell it to you and he confirms it with a Kinyan”.:7 Rav Hai Gaon, (10th century), followed by the Rif (Rabbi Itzchak Alfasi (11th century) and Rambam, assert that the Kinyan was “as of now’, namely the phrase “if I shall sell” is a condition upon whose fulfillments the sale becomes valid retroactively from the time of the Kinyan. That is why the Rambam is careful to write that the Kinyan must be “that when I shall sell this field, it is sold to you

as

of now”,

for the

expression

“I shall

sell you

as

of

now” is somewhat self-contradictory — I shall sell you in the future and it is yours as of now. So too has decided the Shulchan Aruch, Choshen Mishpat, chap. 207, section 1. However,

the Tur Choshen

Mishpat,

ibid, combines

ses “I shall sell you” and “as of now” in the resultant

The addition

the phra-

and sees no difficulty

expression.

of "88 of now”

is necessary

because

other-

wise when the time arrives, there will be no act giving ceremonious confirmation of the sale. For the Kinyan that

he performs, Kinyan Suddar, is performed of the

agreement,

but it does

not

take

at the conclusion

effect

till after

the

fulfillment of the condition of the implementation of the will to sell, by which time the “power of the Kinyan Suddar has been dissipated” and all that is left is a Kinyan of unsupported parole *.

Most writers are of the opinion that there need be no express

stipulation

“as of now”

since every

Kinyan

is equiva-

17. Tractate Abodah Zarah 72a, Rashi. : 18. Rif on Tractate Baba Bathra, chapter VII, end section 830: “it is understood that in all these cases he stated “as of now” and it was confirmed with a Kinyan’”: Rambam, Laws of Sale, chap. 8, section

7,

19.

Tractate

20.

Beth

Nedarim,

Joseph,

Tur

end

of

Choshen

chap.

entitled

Mishpat,

chap.

The

Partners,

206,

section

48a.

I.

SPESCIFIC PERFORMANCE IN HEBREW LAW lent to as

of now”,

for since

there

is a mutual

203 desire

on

the part of both parties that the Kinyan should take effect, they have in mind the most effective expression. At all events, if the mention of the act of Kinyan is repeated in the written document below, then it is universally agreed that it was intended to give stronger effect to the transaction and the Kinyan was undoubtedly performed in the most effective possible manner”. For the whole matter rests on the serious intentions of the parties. However, Rabbi Sasson ** dealt with the issue from an entirely new approach by distinguishing the expressions “sale” and

“agreement

to sell”.

According

to him,

the

entire

dis-

cussion regarding “as of now” applies only to the case where the written (deed) contract reads “when I shall sell the field I shall sell it to you or it is sold to you as of now” but if he wrote the (deed) contract using language connotating obligation, that is if he made not a deed of sale, but an agreement to sell, then there is no need for the addition of the “as of now” phrase. Only in a deed of sale which is conditional on the fulfillment of conditions to be performed in the future, there must be a stipulation of retroactivity of effect since the Kinyan and sale must take place at one and the same time. For if the sale proper is separated from the Kinyan, the latter remains a mere acquisition of words. If the sale does not take place immediately, the Kinyan has not on what

to take

effect, whereas

the sale that is due to

become effective later is left without an act of Kinyan. However, if the contract is merely an agreement to sell, there is already at the time of the Kinyan something on which it can take effect and that is the personal obligation which the vendor is obliged to discharge. Rabbi Sasson bases himself on the Ramah?', quoted by 21.

Responsa

of Rashba

attributed

to

the

Ramban,

son of Nachman (13th century), Zolkiew ed., 1798, han Aruch, Choshen Mishpat, chap. 245, section

(Rabbi

respondum 3.

Moses

II; Shul-

22. Shulchan Aruch, Choshen Mishpat, chap, 212, sec. 1, glossa. The “Hagrah” ibid., refers to Baba Bathra 136a, as source; Netivot Hamishpat, Choshen Mishpat, chap. 206, sub-section I. 23. “Torat Emet”, Responsum 133, p. 146b. 24. Rabbi Meir Halevi Abulafia, great scholar in Spain in 13th century.

ZORACH WARHAFTIG

204

the Tur* and on 8 responsum Caro?’ as follows:

of the Rashbah*®

quoted by

“However, when do we say that no one can contract to sell something that is not in existence or not in his when he contracts using the formula of Kinyan he sells in rem) but if he takes upon himself an in personam, it can be with respect to anything

possession, (i.e. when obligation etc.” Also

in the responsum of the Rashba, referred to by ‫ו‬‎ Caro in Chapter LX, it is asserted: ** “but whoever binds himself to

give what the tree will produce (something not yet in existence), his parole acquires legal efficacy, for he is not selling the fruit in rem but merely obligating himself in personam.” In sum, we must needs distinguish between a sale and an agreement to sell. In the former case, there arises (we become involved in) a discrepancy in time between the act of Kinyan and its taking effect, which is non-existent in the latter cases. Whence the expression of obligation takes effect even against a third party buyer for a higher price, for the expression is stronger’’. *® (However, Rabbi Sasson’s opinion does not go undisputed. The Mishnah L’melech *® quotes the Bet Joseph’s handwritten comment in the margin of the Tur, chap. 206, in which he demurs from the bland assertion of Rabbi Sasson that the expression implying obligation is a stronger one. In the opinion of the Bet Joseph, an agreement to sell gives weaker results than a conditional sale, “because an obligation to sell is not being an actual sale, creates only an action in personam and therefore if he sells to a third party, the latter’s right cannot be pre-empted.’’) The practical difference between the two contracts, namely a retro-active contract of sale with an attached condition, “when I shall sell it” and an agreement to sell, is with reg25. 26.

Choshen Mishpat, ibid., chap. Rabbi Solomon ben Aderet,

century.

157, sec. 20. noted scholar

in

Spain

in

18th

27. Bet Joseph on the Tur, Choshen Mishpat, chap. 209, sub-sec. 6. 28. Bet Joseph on the Tur, Choshen Mishpat, chap. 60 sub-sec. 10, in which he refers also to the Baal Hatrumot, chap. 64. 29. Torat Emet, ibid. 30. Mishne L’melech on Rambam, Laws of Sale, chap. 8, section 7.

SPESCIFIC

PERFORMANCE

ard to the time at which the condition has been fulfilled.

IN HEBREW

sale

takes

LAW

effect

205

after

the

In a contract for sale “as of now”, upon the fulfillment of the condition “when I shall sell it”, the sale comes into effect retroactively from the day of the drawing up of the contract and as a result, all the produce accrues to the buyer from that day. But in an agreement to sell, the contract takes effect on the day the obligation is executed, namely, when the contract is performed, and hence the produce will accrue to the buyer only from that day onward. Another difference between the two types of contracts relates to the possible prohibited taking of interest involved in the consumption of the produce during the time between the making of the contract and its coming into effect. In an agreement to sell, no prohibited interest will attach to the consumption of the produce by the vendor who had received part payment since the title to the property was still vested in him. Quite the contrary is the case of a retroactive contract of sale, for here such consumption by the vendor would constitute interest should the buyer pay the balance and thus acquire title retroactive to the making of the contract since the vendor consumed the produce as a payment for waiting for the balance of his money. Similarly, there would be a prohibited taking of interest involved in the event the buyer consumed the produce and did not pay of the price, for thereby

the balance

transaction

the

would

become void ab initio, the paid-in sum would have to be returned and the ostensible result would be that the buyer had consumed freely the produce as a receipt of payment for wating for the money he had deposited with the vendor at the time of making the void contract. * “Therefore, the prois duce is placed in the care of a receiver till such time as it * parties”. the of one to over directed to be handed

31.

Tractate

174, sec. 32.

chap.

Baba

Metzia,

65b;Shulchan

Aruch,

Yoreh

Deah,

chap.

4. ibid;

Baba

Metzia

6, sec.

6; Shulchan

Rambam,

Aruch,

Laws

Yoreh

of

Deah,

Creditor

ibid.

and

Debtor,

206

ZORACH

WARHAFTIG

The Conditions of Possession

of the Res.

According to the Rashba * in the name of Rav Hai Gaon, there exists another condition for the specific performance of a contract against a third party and that is that the land must be in the possession of the buyer at the time of the making of the contract. Such a condition was required by the Palestine Case Law in the days of the Mandate. “Specific Performance” of contracts involving land was restricted to those cases where the land was transferred at the time of the drawirg up of the contract to the buyer’s possession. * This condition is tied up with the theory of part performance. If fulfillment of the contract has already been begun, the Court will be more inclined to order full performance rather than payment of damages. Possession of land is the surest sign of part performance. *° However, the Israel Supreme Court has waived the need for possession as a prior condition for the granting of specific performance. *°

In Hebrew Law too, most of the legal writers did not regard possession of the res as an indispensable condition for specific performance. ** Moreover, Rabbi Sasson in the aove-mentioned responsum, concludes, that even for the Rashba, the condition

“of holding possession” is necessary only if the parties employed the Talmudic expression of sale, but if agreement to sell

was employed, the stronger and more efficacious expression, there is no need for the buyer to be in possession at the time of the making of the contract. *

33. see

(Mentioned Tur

Choshen

by the Maggid Mishpat,

34. CA. 15/88,5 C.A, 195/40, P.L.R. 35.

Harold

Greville

38.

“Torat

Bach

Emet”,

206,

P.L.R. 237. 531.

C.A.

Hanbury;

Polonsky, ibid. 0. .2 36. C.A. 51—53/48 P, 5709. 37. “The Alphasi, the Ashri (ie. Tur)” — the very end.

Mishne,

chap.

on

the

and

182/38,

the

of sale, chap. 8, sec. 7;

1.

Modern

Tur,

responsum

Laws

sec.

5 P.L.R.

378;

Equity,

London

Rambam

and

Choshen

Mishpat

133, p. 14b,

also

206,

column

1949,

1.

p.

our

sub-sec.

604;

Rabbi 2

at

SPESCIFIC

PERFORMANCE

IN HEBREW

LAW

207

Condition of Payment of Price In both the English and Israeli laws, it is an accepted rule that the full payment of the price is an indispensable condition for the granting of specific performance. * The specific performance is ordered to complete a contract, part performance of which has been begun by the payment of the price. In Hebrew Law, however, the payment of the price plays no role whatever in the granting of specific performance. If the contract has been properly validated by means of a Kinyan Suddar, it will be completely binding and subject to enforcement even though the buyer has not yet paid a cent on account of the price. As was previously pointed out, part payment of the price at the time of the making of the contract draws us into the question of prohibited interest involved in the consumption of the produce during the time spanning the making of the contract and its enforcement. Moreover, the contract is valid even if the determination of the price was left to the decision of a Court or three or four :

arbitrators. *° The accepted law does not require for the specific performance of a contract either possession of the res by the buyer or the payment of the price whether in full or in part. The main requirement is that the contract be drawn up in the proper language and supported by a valid Kinyan.“ IV.

Enforcement

of Contracts in actual practice

In order to clarify the problem and the methods of solving it, we must needs mention in addition to the above-quoted portion of the Talmud, Abodah Zarah, 72, a number of cases and their solutions as reflected in the latter day Halachic literature. 39. “There is no justification for the extension of the doctrine (of Specific Performance) to the case where the consideration has not been paid” (C.A, 157/43, 10 P.L.R. 315; C.A. 168/43, 10 P.L.R. 371. 40. Abodah Zarah 72a; Cf. C.A. 73/53, 9 P.D. 62 which deals with the

specific

performance

of

an

cooperative building in which be settled by a third party. 41.

Rambam,

Choshen

Mishpat,

Law

of Sale,

chap.

agreement

the ch.

206, sec.

to

sell

determination 8, sec.

1

7; Tur

an

apartment

of the and

price

Shulchan

in

was

a

to

Aruch,

208

ZORACH WARHAFTIG

A. Before Rabbi Joseph Cologne, a noted Italian Rabbi, who lived in the 16th century, the following legal problem was brought.‘ It appears that Rabbi Isaac made an agreement with his learned partner Samuel that he would sell to no one but him his Kotmo store (store for money-lending on security licensed by the Government for a limited period) for a pre-arranged sum. Afterwards Rabbi Isaac sold the Kotmo store to Rabbi Moses Shyntzein for a higher price and the latter in turn sold it to Rabbi Kolonymus, Rabbi Isaac’s nephew. Samuel demanded specific performance of the contract and the sale of the store to him at the pre-arranged price. The Maharik ruled that the law governing the sale of Kotmo was the same as that governing a lease which differed not from the law governing ordinary sales. The buyer Samuel could enforce this contract against the vendor and any third party and therefore had the right to compel Rabbi Kolonymus to vacate the premises since the latter had no more rights than those possessed by Rabbi Moses, who

had transferred

him the title

with all its informities, and who had no more than Rabbi Isaac, and Rabbi Kolonymus could not derive any advantage from Samuel’s reticence and lack of protest at the sale. There had been no waiver because Samuel too had mistakenly believed that the sale of Kotmo was not classed under the category of sale and therefore could not be specifically enforced. A mistaken waiver is an invalid waiver. The Maharik

added

either for a Kinyan

that in this case

there was

no need

(actually there had been one) or for the

formula “it is sold to you as of now” since this was a conditional contract between partners and where partners are concerned there is sufficient consideration in the satisfaction each derives from the other’s willingness to obey him that no Kinyan is necessary. The fact that Rabbi Isaac had received a higher price in no way changed the situation, since unlike the above cited case of the Talmud, there had been an agreement to sell untrammeled by any condition implying “a will to sell”. B.

The following

42.

Responsa

case was

of Maharik,

brought

principle

20.

before

Rabbi

Joseph

SPESCIFIC

PERFORMANCE

IN HEBREW

LAW

209

Caro, author of the Bet Joseph (commentary on the Tur) and of the Shulchan Aruch: — Menachem had made an agreement supported by a Kinyan with Mr. Willaisid in which the latter undertook to sell to Menachem, upon vacating his apartment in Adrianople to take up residence in another city, the possession of his courtyard for a pre-established sum and to monetarily satisfy the adjoining tenants who would demand rights of pre-emption. Some time later a rumour spread that Willaisid would leave Adrianople after Passover and emigrate to Eretz Yisrael. Menachem transferred the contract he had made with Willaisid together with all rights and encumbrances to Mr. Chaim. However, the adjoining tenants (according to the Communities’ agreement regarding possession, whoever lived in a sold courtyard had the right of pre-emption) claimed their rights of pre-emption

from

Chaim.

His defence

rights emanated from Menachem and as the claim of pre-emption rights must fail had in fulfillment of the contract, given tisfaction. They had therefore no claim nor against his transferee, Chaim.

was, that his

regards Menachem, since Mr. Willaisid them monetary saagainst Menachem,

Rabbi Caro ruled that if the contract between Willaisid and Menachem had been drawn up in the form of: “when I vacate, my courtyard is sold to you as of now for such and such”, then we have a deed of sale in rem. Therefore when Willaisid afterwards vacates, the land retroactively belongs to Menachem.

If he now

sold

his

deed

to Chaim,

it was

not

a

mere deed that he sold, but a new transaction of sale that was made. Therefore, the tenants who had previously received monetary

satisfaction

of pre-emption him evicted. **

from

Willaisid,

as against Chaim

now

had

a new

right

and could rightfully have

C. Before Rabbi Aaron Sasson, the following case was brought: — Reuben sold a “builta” (possession of land) and a storeroom to Simon and his wife and the latter undertook in the very same deed, as an unconditional obligation and as of 43.

‘“‘Avkat

Rochel”,

chapter

123.

210

now,

to resell

them

ZORACH

WARHAFTIG

to one

of Reuben’s

two

sons,

Isaac

or

Levi, when the latter had reached the age of Bar Mitzvah, on request for the sum of twelve thousand levanim (ducats?) and during that same period not to sell the property to anyone else no matter what they are offered. Many years elapsed and after the decease of both the vendor and the buyers, Isaac the son of Reuben turned to Simon’s heirs to discharge their parents’ undertaking and sell him the builta and storeroom. Rabbi Sasson ruled that Simon’s heirs were legally bound to fulfill their parents’ obligation to sell the property to Isaac and they could not sell it to others for any price however high. ** V.

Specific Performance

and Third Parties

In all three above-mentioned cases, the issue was possession of land, the first dealing with a quasi-lease. In all the ruling

was, that the contract must be specifically performed and the property made over to the original purchaser. In the first two cases, the possession had already been sold to a third party. Nevertheless, it was ruled that the original purchaser could

recover

it from

the third

party.

In all the cases,

the

third party was not a purchaser in good faith (bona fide). Rabbi Kolonymus bought the title to the Kotmo from Rabbi Moses, who had purchased it from the former’s uncle Rabbi Isaac.In the second case, the purchaser Chaim should have known,

and

in fact did know,

that there

were

tenants

with

rights of pre-emption in Willaisid’s courtyard. A third party has no defence against a petition for specific performance of the contract made with the original purchaser because he is presumed to have knowledge of all deeds, in accordance with the rule that all deeds are notorious. In the case of a “retroactive sale”, title to the res is vested retroactively in the original purchaser. Hence, when the vendor resells the property, he is selling what does not belong to him.

(Rabbi Caro

in aforementioned responsum... since when Willaisid vacates, the coutryard belongs retroactively to Menachem... he pos808808 8 title in rem... * 44, 45.

Torat Emet, Venice 1626, responsum 133 Avkat 100661, p. 113 column 2 below.

SPESCIFIC PERFORMANCE IN HEBREW LAW

211

It can be presumed that even in the event the deed is drawn up as an agreement to sell, although the purchaser acquires title to the property only on the day the contract is carried out, he still takes precedence over a third party and can have him evicted. This right is reminiscent of the right of pre-emption by an owner of adjoining property. Just 88 pre-emptor can remove the purchaser even after the latter has taken possession by refunding, the purchase money, so can the original purchaser remove the third party. Moreover, he will not be required to refund more than the sum stipulated in the original agreement to sell. For the agreement to sell was notorious and third party purchaser could not purchase bona fide. Our assumption is admissibly not based on any explicit precedent. However, it can derive support from Rabbi Sasson’s responsum wherein he compares the case under review with that discussed in Abodah Zarah. Rabbi Sasson tries to explain what led the Rashba to interpret the contract in Abodah Zarah, to have been a retroactive sale and not an agreement to sell. We need not go into his analysis in detail.“ But, if then in an agreement to sell, the third party took precedence over the original purchaser since the latter possessed no right in rem in the property but merely a right in personam against the vendor, Rabbi Sasson could easily have distinguished between the Talmudic case as explained by the Rashba and the case under review by him, namely, that in the former there was a sale to a third party whom the original purchaser had to pre-empt, while in the latter there had been no resale, wherefore a mere agreement to sell could also be specifically enforced. VI.

Specific Performance not granted in Contracts for Personal Services. Contracts for personal services, work contracts, are not subject to enforcement by specific performance. The source to this rule is the principle that, “the children of Israel are my slaves“ only and not the slaves of slaves .** In accordance 46. 47.

Torat Emet ibid., p. 147b, column Leviticus XXV 55

48.

Baba

Kama

116b;

Baba

Metzia

2 above.

10a;

, Kiddushin

220.

212

ZORACH

WARHAFTIG

with this principle, a worker may abruptly discontinue working in midday in spite of any prior agreement.* Even the skilled workman, including a contractor or a workman in a perishable job (work that cannot be postponed and it is difficult to hire another workman on the spot to finish it; a breach of contract on the part of the workman, can thus occasion great losses), may abruptly discontinue his work, only such breach will bring about pecuniary disadvantage for the worker. °° A hired workman or skilled contractor cannot be compelled to perform personal services. Such compulsion even for the sake of the fulfillment of an agreement, suggests slavery. An echo of this characteristic outlook of Hebrew Law can be heard seventeen hundred years later in words of an English judge: — ‘It seems to me that the Courts zealously stand guard to prevent contracts for services from turning into slave contracts . . . I am opposed to the theoretical extension of specific performance . . . in these circumstances.” ** In the United States enforcement of specific performance of contracts for personal services, is regarded as being opposed to the thirteenth amendment of the constitution which prohibits “forced labour except as a punishment for a crime imposed in accoradnce with the law”.® Rabbi Ephraim Hacohen, chief rabbi of Vilna at the beginning of the seventeenth century, quotes a Tosephta at the end of Baba Metzia > “Whoever is a public bathhouse superintendent, a public barber, a public baker or a public money-changer and there is no other except he, and close upon the holiday season he wishes to leave, he can be prevented, unless he provides a substitute. But if he has stipulated explicitly in Court (that he could return home before the holiday), or if he had been 49. Baba Metzia 10a; 77a. 50. Baba Metzia 75D; Schulchan Aruch, Choshen Mishpat, ch."833, sec. 5, 51. Per judge Fry (1890) 45 Ch. D. 430, 438, quoted in Hanbury, ibid. p. 611. 52. Hanbury ibid. p. 610, note 71. 53. Responsa “Sha’ar Ephraim”, Lemberg 1887, p. 4, responsum 138. 54. Tosephta Baba Metzia, chap. XI Beraita 18.

SPESCIFIC PERFORMANCE IN HEBREW LAW

213

illegally detained he may do so”, and wonders whether this Tosephta does not ostensibly contradict the principle that specific performance of contracts for personal services cannot be enforced. However, this beraita is merely a continuation of beraita no. 12, which deals with the right of “the residents of a city to compel one another to build a synagogue, buy a Torah Scroll, etc.” 1.6., regulations for public welfare, which have nothing to do with contracts for personal services. The public can in certain circumstances, with due process of the law, promulgate regulations and place limitations on the individual for the public good and even require him to render personal services for the public good. But there is no connection whatsoever between these regulations and the question of enforcement of contracts. 5° This beraita was understood exactly in the same way by (Maharam) Rabbi Meir Ben Baruch of Ruthenburg** who ruled, on the basis of this beraita, that in a city where there were only ten Jews and one wanted to leave the community service, he could be compelled by the others to remain, if there was no minyan (quorum for community prayer) without him.‘ The Maharam refers to the above Tosephta and infers from it that “they can compel him wherever there exists a great public need.” Therefore, even as regards the completion of a minyan “since where there is a lack of even one or two to form

a minyan,

the custom

in the entire

Golah

is to hire a

person to complete the minyan for the Days of Awe, as they are unaccustomed to leave their homes (on these days), they may compel him to remain or to hire another in his stead.” Hence we see that the right to compel a person to stay on so as to complete the minyan, like the right to compel the public bathhouse superintendent, is a corollary of a rule for public good and not an application of the right to compel specific performance of a contract, even where such a contract

exists. 55. Ezekiel

See

‘Chazon

Abramsky,

Ezekiel” Jerusalem,

commentary

on

the

Tosephta

by

Rabbi

1952.

1215. 56. Born at Worms in the year 57. Responsa of Maharam Rotenburg, responsum 1016.

(Prague

ed.) Budapest

1895,

214

VI.

ZORACH

WARHAFTIG

Specific performance of obligation to refrain from acting

Though ed, since possibility to refrain

an undertaking to act cannot be specifically enforcit partakes of forced labour, there does exist the of compelling the performance of an undertaking from action.

The source of this is to be found tate Baba Bathra. °°

“Certain

butchers

made

an

in Talmud

agreement

Bavli

in trac-

one

another

with

that if either killed on the other’s day, the skin of his beast

should be torn to shreds.

One of them

actually did kill on

the other’s day. They therefore tore his animal’s skin. A litig-

ation was brought before Raba and he ordered them to pay damages.

Rav

Yamar,

son

of

Shelemiah,

thereupon

called

Raba’s attention to the Beraitha which says that the townspeople may enforce their regulations. Raba did not deign to answer him. Said Rav Papa: “Raba was quite right not to answer him, for this regulation holds good only where there is no distinguished man in the town, but where there is a distinguished person (that is, a person with administrative authority), they certainly have not the power to make such stipulations without his approval.” °° We see thus that an undertaking to refrain from action, in this case not to engage in one’s trade on certain days, so as to prevent undesirable competition, can be enforced. True, here again it is a matter

of a public rule, that is, an under-

taking of all the tradesmen but subject to the court’s approval, “the important person”, and not something related to simple undertakings and their enforcement. Nevertheless the confirmation of the Court, “the distinguished man” is required only where the regulation is intended as follows, either: 1. To obligate all those who were not privy to the agreement. So the Rambam“ carefully emphasizes: “But where there is a distinguished man, their undertaking is unavailing and they cannot punish or cause loss to someone who did 58. 59.

Baba Ibid,

60.

Mishne

Bathra

98,

Torah, Laws

of Sale, chap. 14, section 11..

SPESCIFIC

PERFORMANCE

IN HEBREW

LAW

215

not agree to the undertaking", unless it was confirmed by the scholar.” The inference then being that as regards those who were party to the agreement, the approval of “the important scholar of the city” is not necessary, because they as direct parties, must perform their own undertakings, discharge their contract as an agreement of the parties, not as a public regulation (rule), or 2. To prevent the agreement of the parties from working detriment to one who is not a party to it. In our case, the agreement among the butchers could have brought about an increase in the price of meat. Every limitation of competition through the overall organization of the butcher industry, and the concomitant reduction of the amount slaughtered for market, leads to a reduction of the supply, and hence to an increase in the price of the commodity. The parties are not authorized to impose such a burden on the public without the approval of the “distinguished man” of the city, who is the public official authorized to speak the public’s mind”. The inference is plain here also that the parties to an agreement can undertake to refrain from action and this agreement can be specifically enforced.

There are numerous responsa dealing with this question, whether an undertaking to refrain from action is enforceable.” Most of the respondents agree that if the agreement is drawn up in a deed, it is effective and enforceable. * In English law, the concept of specific performance of an obligation to refrain from action, is expounded in a long series of decisions beginning with Lumely v. Wagner, 1852.°° Tur Choshen 61. The Kesef Mishna on the spot and the Bet Joseph, who did not acMishpat, ch. 231. sub-sec. 30, interpret the words “he n”, cept the undertaking” to mean “he who did but the simple meaning is to 6 preferred.

62.

The

Joseph

on

as the

also

Choshen

no

Ranvar Rif

the

accepted

Mishpat,

detriment

ch.

231,

to others,

Chapter

Bathra,

ruling

sec.

68,

they may

63.

Responsa

of the Maharsham,

64.

Responsa

Maharsham

Polonsky

ibidem

ibidem;

pp. 41-48.

at

quoted

Partners,

in the Rama’s

selves.”

65.

Gaon,

of the

in the name Baba

fulfill

not

the

regulate

Glossa end:

what

his

obligatio

by the Nimukai

article

quoted

638;

Aruch,

in Shulchan

‘However,

if there

they wish

part I, ch, 18, ed. Piotrkow Shvut

Jacob,

part

I, ch.

is

for them-

130.

1904.

216

ZORACH

WARHAFTIG

SUMMARY DIFFERENCES LAW

OF

APPROACH

TO SPECIFIC

OF

ROMAN

PERFORMANCE

LAW OF

AND

HEBREW

CONTRACT

The tendency in Roman Law to divert the problem of enforcement of contract into the channel of pecuniary compensation, stems from its approach to the concept of ownership. Roman law recognized only absolute ownership. The land of absolutist government regarded ownership too as a sort of absolutist rule over a certain piece of property or chattel. Roman law did not suffer any limitation of the rule of ownership by contracts oragreements. The contract could therefore entail only pecuniary results through the imposition of penalties or payment of compensation on the party responsible for the breach but could not create rights in rem with respect to the res itself, not even such as could compel the other party to the agreement to produce the res or transfer the property. The alienation of ownership either takes place immediately, concurrently with the delivery of the contract for sale, or the contract leaves the ownership intact. This is the reason for the clear demarcation between the law of contracts and the law of property. Not so is the case in Hebrew law. There is no absolute right of ownership. One God possesses absolute ownership (To God belongs the entire Universe — Psalms 24,1; Mine is the Silver and Mine is the gold, saith the God of Hosts — Chaggai II,8). Man's ownership is throughout limited and restricted. The laws of the sabbatical year and the jubilee, relation s between neighbours and more, impose limitations on ownership and make it relative. There is title to the res and title to the produce. There is ownership till the jubilee year and there is ownership for all time. There are thus classes and degrees of ownership. It follows hence that the absoute control of owner ship can be restricted even by an agreement. An encubmranc e creates a right in rem over the property for the posses sor of the encumbrance. An agreement to sell restricts somewhat the owner’s right of ownership. There does not exist such a sharp distinction between the law of contract and the law of property. The normal outcome of a contract is therefore, that it is to be fulfilled specifically and literally and only where that

SPESCIFIC PERFORMANCE IN HEBREW LAW

217

is impossible, then a substitute is introduced in the form of stipulated penalties and compensation, or the payment of daMages pursuant to the decision of a court of law. THE

DIFFERENCE

BETWEEN

RESPECTING

HEBREW

LAW

AND

SPECIFIC

PERFORMANCE

ENGLISH-ISRAELI

LAW

The doctrine of specific performance of contracts as found in English Law, and consequently in Israeli Law, is far apart from the Hebrew legal conception. Whereas in English law, Specific performance of contracts is merely an equitable remedy, the general rule is payment of damages. Only “when payment of damages is an inadequate compensation does specific performance come into play. It must be admitted, that the principle of specific performance has been constantly expanding and with respect to land (immovables), it is granted

“almost as a matter of course”. Nevertheless, from a theoretical standpoint, the specific performance has remained to this day an instrument of equity, a subsidiary remedy. As for Hebrew

Law, specific performance

the rule, not the exception.

of a contract is

The rule is, that a contract must

be properly performed, in accordance with the intention of the parties. “The remnants of Israel shall do no wrong” (Zephania ch. IT) has been raised to a legal principle‘’, from

which many rules are deducible. The parties when entering into the contract, intended it to be performed completely. They regarded the contract seriously. If one party retracts, the contract which was validly created, must be enforced. As for the third party purchaser, who in the meantime acquired the property, it is presumed that he was apprised of the original contract (constructive notice), because all deeds were public and notorious and hence the original purchaser retained a quasi in rem right to the property and took precedence over him. This fundamental approach of Hebrew Law gives rise to far-reaching practical results and has contributed greatly to making the doctrine of specific performance a broad inclus66,

Hanbury,

67.

Baba

ibid., pp. 598-607.

Metzia

49a

and

Rashi

ibid.

218

‘

ZORACH

WARHAFTIG

ive remedy. It is not subject to the discretion of the court, since it is a full fledged legal instrument. There is no room for limitations and restrictive conditions, such as the requirement of full payment of the stipulated price on the part of the purchaser, or, according to the opinion of the majority of legal writers, of a need for the latter to be in possession of the property. It is sufficient that the contract between the parties was validly created for the court to order specific performance on the part of the party retracting, or against a third party purchaser who is held to have had constructive notice of the original contract.

USE IN

THE

OF MARGINAL

INTERPRETATION HENRY

NOTES OF

STATUTES

E. BAKER

Prior to 1849 marginal notes did not appear of Parliament,

which

were

the

official

record

on the Rolls of statutes

in

England, and therefore they formed no part of an Act of Parliament and consequently they were not referred to for the purpose of interpretation. That practice was discontinued in 1849, since which time a copy of each Act, printed on vellum by the King’s Printer is preserved in the House of Lords and constitutes the official record of statutes, and marginal notes appear in such copy. Nevertheless, the rule that marginal notes are not to be referred to for the purpose of interpretation has been retained. Willes J., in reviewing the form of legislation since 1849, said in Claydon v. Green (1868 L.R.3 C.P.511 at p. 522): “I desire to record my conviction that this change in the mode of recording them cannot affect the rule which treated the title of the Act, the marginal notes, and the punctuation, not as forming part of the Act but merely as a contemporanea expositio. The Act, when passed, must be looked at just as if it were still entered upon a roll, which it may be again if Parliament should be pleased so to order; in which case it would be without these append-

ages, which, though useful as a guide to a hasty inquirer, ought not to be relied upon in construing an Act of Parliament.” In Venour v. Sellon (1876 2 Ch.D.522), Jessel M.R., in holding that marginal notes could be referred to for the purpose of interpreting a statute, said (at p. 525): “This view is borne out by the marginal notes; and I may mention that the marginal notes of Acts of Parliament now appear on the Rolls of Parliament, and consequently form part of the Acts; and in fact are so clearly so, that I have known them to be the subject of motion and amendment in Parliament”.

220

HENRY

E. BAKER

But in a later case, Sutton v. Sutton (1883 22 Ch.D.511), referring to that dictum, he said (at p. 513):

“The dictum in that case is not strictly correct. I have since ascertained that the practice is so uncertain as to the marginal notes that it cannot be laid down that they are always on the Roll”. In Attorney-General v. Great Eastern Railway (1879 11 Ch. D.449) Baggallay L.J. gave another reason for disregarding the marginal notes. He said (at p. 461): “I never knew an amendment set down or discussed upon the marginal note to a clause. The House of Commons never has anything to do with the amendment of the marginal note. I never knew a marginal note considered by the House of Commons.” That view was adopted by Hanworth MR. in Nixon v. Attorney-General (1930 1 Ch. 566). In referring to the Superannuation Act, 1859, he said (at p. 594): “The marginal notes of section 3 refer to “existing rights” and of section 12 to “right”. It was contended that these catchwords could be used to explain the meaning of sections against which they appear. For my part I cannot allow this. As explained by Baggallay L.J. in Attorney-General v. Great Eastern Railway, marginal notes are not a part of an Act of Parliament.

The Houses of Parliament

have nothing

to do with them, and I agree with the learned Lords Justices in that case that the Courts cannot look at them.” Furthermore, Scrutton L.J. in Wilkes v. Goodwin (1923 2 K.B.86) said (at p. 100): “The side-notes

are not part of the Act, and

I believe are

not considered or amended by the Legislature.” In an earlier case, In re The Vexatious Actions Act, 1896

and In re Bernard Boaler

(1915 1 K.B.21), the question arose

as to whether the expression “legal proceedings” appearing in section 1 of that Act included criminal proceedings, and the same Judge said in the course of his judgement (at p. 41): “The anonymous author of the marginal note thought the correct summary of s. 1, was “Power of Court to prohibit institution of action without leave”, but this is not part of the statute,

Opinion.”

and

I pay

no

attention

to it in forming

my

MARGINAL NOTES IN STATUTES

221

| In R. v. Bates and anor. (1952 2 All E.R.842), Donovan J., in refusing to refer to a marginal note in order to construe section 12(1) of the Prevention of Fraud (Investments) Act, 1939, said (at p. 844): “The marginal note I reject as a guide to construction. As I said during the argument, it is not the subject of debate or amendment in Parliament, and it follows that during the passage of a Bill amendment may be made to a clause which extends its effect beyond the scope of the marginal note, which, nevertheless, remains unamended.

would then become to construction.” On

the other

hand,

The note, therefore,

actually misleading if used as a guide Lord

Phillimore

in Re Woking

Urban

District Council (Basingstoke Canal) Act, 1911 (1914 1 Ch. 300) said (at p. 322): | “I am aware of the general rule of law as to marginal notes, at any rate in public general Acts of Parliament; but that rule is founded, as will be seen on reference to the cases, upon the principle that those notes are inserted not by Parliament nor under the authority of Parliament, but by irresponsible persons. Where, however, as in section 10 of this Act, and in some other recent local and personal Acts which have come under my cognisance, the marginal notes are mentioned as already existing and established, it may well be that they do form a part of the Act of Parliament. I do not, however, decide the case upon this ground.” In a more recent case, Pride of Derby and Derbyshire Angling Association Ltd. and anor. v. British Celanese Ltd. and ors. (1953 1 All E.R.179) Evershed MR, in interpreting section 109 of the. Derby Corporation Act, 1901, said (at

p. 188): “T assume ard to these part of the should arise it would be offered any

in this case that it is permissible to have regmarginal notes, for it appears that they formed Act when it was passed. If, therefore, there an ambiguity in the meaning of the section, permissible to see whether the marginal note solution for the ambiguity.” From the abovequoted dicta it appears that the English g and Courts take into consideration the manner of draftin

222

HENRY

E.

BAKER

passing statutes in order to determine whether or not marginal notes can be referred to for the interpretation of statutes. In order to determine whether the rules contained in those dicta can be applied with regard to marginal notes in Palestine and Israel legislation it is necessary, therefore, to consider

how such legislation is drafted and passed. Paragraph XVI of the Royal Instructions passed under the Royal Sign Manual and Signet to the High Commissioner and Commander-in-Chief in Palestine, dated 1st January, 1932 (Laws of Palestine Vol. 111 p. 2659 at p. 2663) provides that, in the enactment of laws the High Commissioner shall observe, as far as practicable, the rules set out in that paragraph. Among those rules is a rule that to every clause of an Ordinance there shall be annexed in the margin a short summary of its contents. Accordingly, it was the practice to insert marginal notes in every Palestine Ordinance, the High Commissioner did not sign any Ordinance unless and until they were inserted, and the Ordinance

was

published

in the Official Ga-

zette (in accordance with Paragraph XXIV(1) of the Royal Instructions) with the marginal notes inserted therein. In addition, when a new section was inserted in an Ordinance, or substituted for a section thereof by a subsequent amending Ordinance, the new or substituted section was inserted together with a marginal note thereto. Furthermore, it was the practice to amend and delete marginal notes by means of legislation. For examp le, section 3 of the Police (Amendment) Ordinance, 1947, provided: “3. Section 79 of the principal Ordinance and the marginal note thereto shall be repealed.” while section 2 of the Municipal Corporations (Amendment) Ordinance, 1941 provided: “2. Section 128 of the principal Ordinance shall be renumbered as section 128(1) and shall be amen ded as follows:

(a) by the deletion of the word “bad” appea ring in the marginal note thereto.” sa From the foregoing it would appear to be quite clear that the Palestine legislature regarded marginal notes as forming part of the legislation, and that consequent ly legislation was

MARGINAL

NOTES

IN STATUTES

223

required to amend or delete them. That is also the view taken by the Knesset,

the Israel

amended the marginal Ordinance by section ment Law, 5713-1953, That being so, it

legislature.

Thus,

for example;

it

note to section 24 of the Palestine Press 1(b) (1) of the Press Ordinance Amendwhile amending that section. would appear to be permissible to refer

to marginal notes in order to construe all Palestine Ordinances,

including the Criminal Code Ordinance, 1936, and the Civil Wrongs Ordinance, 1944. Each of the latter two Ordinances contains an express provision that it is to be interpreted in accordance with the principles of legal interpretation obtaining in England, but although generally speaking marginal notes, according to those principles, are not to be referred to in interpreting statutes, yet in view of the dicta of Lord Phillimore and Evershed M.R. quoted above, as the marginal notes in those Ordinances, as in all other Ordinances, are part of the Ordinance and are amended by the legislature, they may be taken into consideration for the purpose of interpreting those Ordinances. There is no reported case of a Palestine Court in which the nature of marginal notes and the extent to which they may be used in the interpretation of Palestine legislation were considered, although there are several cases in which marginal notes were referred to by the Palestine Courts and used as an aid to interpretation without any reason being given by the Court for its so doing. Thus, in Friedenberg v. AttorneyGeneral (Criminal Appeal 27/41 8 P.L.R. 169), the Court had regard to the marginal note “form of judgment” to section 51 of the Criminal Procedure

(Trial upon Information)

Ordinance

which required the presiding judge to record upon his note the findings of fact upon which the conviction or acquittal was based, in order to determine the meaning of “judgment” in section 70 of the Ordinance. In Horowitz v. Assessing Officer, Jerusalem District (Income Tax Appeal 9/42, 10 P.L.R. 255), in dealing with the question whether income tax was retrospective, under the Income

Tax

Ordinance,

1941,

that

is to say,

a tax

on

the

previous year’s income as such or a tax on the income of the year of assessment, calculated on the basis of the previous year’s income, Copland J., said (at p. 268):

224

HENRY E. BAKER

“T am of opinion that the tax is not retroactive for several reasons. In the first place, take the marginal notes — that to section 5 is “charge of income tax”, and that to section 6 is “basis of assessment”. I am aware that marginal notes are not law, but at any rate they are a guide to show what was in the mind of the legislature. In this case the marginal notes indicate quite clearly that section 5 is the taxing section, and section 6 lays down the basis or method of assessment — it is the computation or calculation section. And if the legislature does not mean what it says then it should say so.”

The marginal note to section 6 of the Income Tax Ordinance, 1941, was referred to again in the judgment of GordonSmith C.J. in Halaby v. Assessing Officer, Lydda District (Income Tax Appeal 18/42 10 P.L.R. 342), in which it was said (at p. 347): “Dr. Joseph relies on the fact that the marginal note to section 6 says: “basis of assessment”. I do not think, however, that that is fatal to the respondent’s

contention,

be-

cause if, apart from the wording of that note, the language of the section is such as to make it a charging section (which in my opinion it is), the phraseology of the note, in my view, is of a neutral character and quite insufficient to detract from the clear language of the section itself.”

The extent, if any, to which marginal notes may be used in the interpretation of Palestine Ordinances has been considered by the Israel Courts. In Weil v. Attorney-General, (Criminal Appeal 53/49 P.S.C. Vol. 2 p. 438) the question arose whether section 131(a) of the Criminal Code Ordinance, 1936, applies to a case of insult-

ing a Court.

Cheshin

J., in the course

of his judgment,

said

(at p. 451): “The marginal note it is true describes the section: “scandalizing the Court” — but it is well known that a marginal note does not form part of the law itself, and while it is sometimes apt to throw light on the intention of the legislature it is disregarded when such intention does not appear from the law itself. I would not go so far as to say —

as did an English judge

(Phillimore J.) that “these notes

MARGINAL

NOTES

IN

STATUTES

225

(marginal notes) are written by “irresponsible persons” (see Maxwell on the Interpretation of Statutes, 9 th Ed. p. 45), but I do not hesitate to say, as this Court said during the period of the Mandate,

in Civil Appeal

18/39

(1939

A.L.R. Vol. 1, p. 259) with regard to Rule 113 of the Civil Procedure Rules, that “the marginal note is misleading”’. With regard to the small measure of importance of marginal notes for the purposes of interpretation of. statutes, see the dictum of Jessel J. in Sutton v. Sutton (1883 22 Ch.D. 911 at p. 513), Income Tax Appeal 18/42 (1942 A.L.R. p. 393) and Criminal Appeal 59/43 (1943 A.L.R. p. 471).” In Diab v. Attorney-General, (Criminal Appeal 44/52 P.S.C. Vol. 5, p. 419) Silberg J., dealt at length with the question as to whether marginal notes may be taken into consideration in the interpretation of statutes when considering whether

the marginal

note

to section

53(a)

of the Criminal

Code Ordinance, 1936, “Promoting civil war” could be referred to in order to interpret that section. After examining the dicta of Baggallay L.J. in Attorney-General v. Great Eastern Railway, Lord Phillimore in Re Woking Urban District Council (Basingstoke Canal) Act, 1911, Willes J. in Claydon v. Green, Jessel M.R., in Venour v. Sellon, and in Sutton v. Sutton, said

(at p. 424) that everything turns upon the cardinal question whether or not the marginal notes and “headings” came to the knowledge, and received the approval, of the legislature. The traditional

English

view,

he

continued,

is that

Parliament

knows only that which it sees written on the Rolls, in which there are no marginal notes, and everything which is not included therein or need not be included therein, is not part of the law being an addition made by “irresponsible persons”, who have no part in the legislative work of the legislature. In his view, therefore, the arguments as to the value of marginal notes as an aid in the interpretation of English statutes are inapplicable to marginal notes in Palestine legislation, for there was no separation of powers in Palestine during the Mandatory regime, the legislative and executive powers being vested in one and the same person and Palestine legislation was never passed by an elected legislature, being drafted behind closed doors by a body of professional experts, and thereafter submitted to the High Commissioner for his sig-

226

HENRY

E.

BAKER

nature (after he had consulted the Advisory Council). The document then became law and that was the only official act of legislation. It was certainly permissible, he continued, to assume that the document which was submitted for signature was not without marginal notes, and that the signature signifying the legislation also applied to the marginal notes in the law. He concluded, therefore, that in the conditions of the Mandatory Government no distinction was made between sections of the law which were considered and drafted by “irresponsible persons” and the marginal notes to those sections which, it was said, were added afterwards by “irresponsible persons”, because both sections and marginal notes were actually drafted by those experts officially, before they all received

official sanction,

the High Commissioner. In view of the above, conclusion:

by the addition

Silberg

“It appears to me, therefore, content

of the signature

J., came

to the

that whatever

and extent of the English

following

may

rule regarding

of

be the

marginal

notes, here in this country as respects the Mandatory legislation there is nothing to prevent accepting “inspiration for interpretation” from the wording of the marginal notes and deriving assistance from them for the purpose of determining the meaning of the law provided that they are not inconsistent with the express provisions of the law, and if there is any inconsistency between the two, either expressly or by implication, then undoubtedly the law prevails. In the present case, it is clear that the marginal note, the

summary, is incorrect, and for that reason it appears to me that Cheshin J. refused to rely upon the marginal note in Criminal Appeal 53/49.”

It will be observed that no reference was made in the judgment of Silberg J., to the provisions of Paragraph XVI of the Royal Instructions regarding the insertion of marginal notes in Ordinances or to the fact that marginal notes were deleted or amended by legislation by the Mandatory legislature, namely, the High Commissioner, although it was correctly assumed in that judgment that the same professional draftsman

drafted both the sections of the Ordinances and the marginal

MARGINAL

NOTES

IN

STATUTES

207

notes thereto for submission to the High Commissioner and that the High Commissioner did not sign an Ordinance unless and until all the marginal notes were inserted therein. Furthermore, no reference was made in that judgment to the fact that the provisions of the Criminal Code Oridnance, 1936, as explained above, are to be interpreted in accordance with the principles of legal interpretation obtaining in England. For the reasons given above, however, it is submitted that the correct

conclusion

was arrived

at, namely,

that the

marginal notes in Palestine Ordinances, including the Criminal Code Ordinance, 1936, may be taken into consideration in order to interpret any ambiguous provisions thereof. Although the provisions of Paragraph XVI of the Royal Instructions are not binding on the Israel legislature, nevertheless Israel legislation has always contained marginal notes annexed

to each section, both in the Ordinances

of the Provi-

sional Council of State and the laws of the Knesset, and they are regarded by the Israel legislature as part of the legislation, being amended or deleted by legislation. Thus, for example, by section 2 of the Mortgage of Ships Ordinance Amendment Law, 5709-1949, the Knesset amended the marginal note to section 7 of the Mortgages of Ships Ordinance, 5709-1949 of the Provisional Council of State, and by section 1(a) (1) of the Security Service (Amendment No. 2) Law, 5711-1951, it amended a marginal note in one of its own laws, namely,

the

Security

Service

Law,

5709-1949.

In

addition,

when a new section was inserted in an Ordinance of the Provisional Council of State or is inserted in a law of the Knesset or substituted for a section therein, by a subsequent amending Ordinance or law, as the case may be, the new or substituted section was or is inserted together with a marginal note thereto. Finally, all Ordinances of the Provisional Council of State were published in the Official Gazette and all laws of the Knesset are published in Reshumot with the marginal notes inserted therein.

It is submitted,

therefore, that the same rules should

be

applied to the use of marginal notes in Israel legislation for the purposes of interpretation thereof as are applied to the use of marginal notes in Palestine legislation for those pur-

SOME

RECENT DEVELOPMENTS OF THE OF PRECEDENT IN ISRAEL By YEHEZKIEL

DOCTRINE

DROR

On the 23rd July, 1957, the Knesset adopted Courts Law, 1957, : article 33 of which states: “a. b.

A Court is to be guided by rules by a higher Court.

the Judicial

of law decided?

A rule of law decided by the Supreme Court binds all courts with the exception of the Supreme Court itself.”

As this seems to be the only case in modern legal history in which a legislature laid down by formal enactment the extent to which the doctrine of stare decisis is to operate within the legal system, it might be interesting to examine the developments which led to the adoption by the Knesset of this paragraph. Such an examination is of special interest because some of the basic problems of the legal system of Israel, shared to various degrees with other countries having a high rate of social change, are reflected in the judicial decisions and discussions preceding the compromise embodied

in article

33 of the Judicial

Courts

Law,

1957.

Let us first describe the chronological framework of the developments which have found their climax in the adoption of article 33. We shall then analyse the various arguments made during the different stages through which the discussion passes and relate them to some basic problems of the Israeli legal system and the latter’s role in Israeli society. It is rather symptomatic of the absence of clarity regarding some significant parts of Israeli law, that up to May 1954 there was no authoritative statement on the extent to which the doctrine of stare decisis applied in Israel. During the Mandatory period, various courts have in fact declared their 1. Sefer Hahukkim, (5717-1957) 148. 2. The Hebrew expression is ‫הקוספ‬‎ .‫הכלה‬ difficult to translate. Its nearest meaning would in the

text.

This concept is rather seem to be that given

DOCTRINE

OF

PRECEDENT

229

adherence to the doctrine of stave decisis in its more extreme form,* the only question on which no clear agreement was reached being, how far the Supreme Court was bound by its own judgments. Even in regard to this problem, the general tendency was to accept the more rigid English version of the doctrine of stare 0601516, * limiting the instances in which the Supreme Court might overrule its own precedents or in which lower courts would be free to disregard decisions of higher courts, to cases of inconsistency between various decisions,

decisions

which

were

obviously

wrong

or

totally

dis-

regarded the law, decisions which were given without reasons, decisions on matters which were not sufficiently argued before the court or decisions disregarded for a long time. * None of the various organic laws setting up the courts which operated in Palestine® nor any of the substantive acts setting down the law to be applied by the courts, provided a clear statutory basis for the adoption of the doctrine of stare decisis by the Mandatory courts. It might perhaps be claimed that article 46 of the Palestine Order In Council, 1922, provided an open door for the introduction of the English doctrine of stare decisis into Palestine.” This article deals with the law to be applied in Palestine and states in part:

“The jurisdiction of the Civil Courts shall be exercised in conformity with the Ottoman Law in force in Palestine on 1st November,

1914, and such later Ottoman

Laws

as have 066 or may be declared to be in force by Public

Notice,

and

such

Orders

in Council,

Ordinances

and

Re-

3. E.g. H.C. 29/47, 14 P.L.R. 260, at 264, and the minority opinion of Judge Copland in C.A. 158/38, 5 P.L.R. 488, at 494-6, adopted by the Judicial

Committee

of

the

Privy

Council

in

P.C.A.

24/45,

Arieh

Zvi

Lipshitz v. Haim Aron Valero & Oth., 1948, A.C. 1. a different opinion in L.A. 52/35, expressed 4, Judge Manning 4 P.L.R. 21. 5. Cf. C.A. 158/38, 5 P.L.R. 488, at 496; also: G. Tedeschi, Studies in Israel Law (1952, in Hebrew) tioning these various exceptions

34, where are cited.

Palestinian

precedents

men-

6. Mainly the Palestine Order in Council, 1922 (3 Drayton, Laws of Palestine, 2569), as amended in 1923, 1933, 1935, 1939, 1940 and 1947, and the Courts Ordinance 1940 (Palestine Gazette, 1940, Supplement 1, 143), as amended in 1942, 1943, 1945, 1946, and 1947, 7. The President of the Supreme Court, Mr. Justice Olshan, mentioned this possibility in his opinion in H.C. 176/54, 9 P.D, 617, at 630.

230

YEHEZKEL

gulations

as are in force

DROR

in Palestine

at the date

of the

commencement of this Order or may hereafter be applied or enacted; and subject thereto, and so far as the same shall not extend or apply, shall be exercised ... with the powers vested in and according to the procedure and practice observed by or before Courts of Justice and Justices of the Peace in England . . . ”® The better opinion seems to be that the doctrine of precedent cannot be regarded as part of “procedure and practice”, and in any case there was

here no lacuna

in local law mak-

ing necessary introduction of English laws and procedures, and therefore article 46 cannot be regarded as providing a statutory basis for the adoption of the British doctrine of precedent

in Palestine.’

It seems

that we

have

here

a case

of unconscious transfer by diffusion: British Judges and law officers who came to Palestine brought with them the ways of thought and methods of work of the common law, including the doctrine of stare decisis, and introduced it into Palestine law without being consciously aware of this process. Most Mandatory judgments regarded the doctrine of stare decisis as self-understood and beyond the need of a statutory basis, recognizing some doubts only in regard to the marginal problem of whether the Supreme Court was bound by its own decisions. It is interesting to observe that the many non-British judges and lawyers with a Continental background who practiced in Palestine adjusted themselves rather quickly to the sprit and methods of the common law and became in general strong supporters of the doctrine of precedent and the case-by-case common law approach to the development of the legal system. ?° 8. 9.

Emphasis added. This is the opinion

of Professor

Tedeschi

in an

article

on

The

Doctrine of Precedent in Present and Future Israeli Law, included in his Studies in Israeli Law, supra, note 5. 10. Cf, Benjamin Akzin, Codification in a New State: A Case Study of Israel (1956) 5 American Journal of Comparative Law 44, at 53 f.

These observations are supported by a study of the legal professio n in Israel undertaken by Dr. J. Ben-David of the Department of Sociology of the Hebrew University. Some of his conclusions, including short

remarks on the conversion of the Palestinian lawyers into “convinced adherents of the English legal system” are published in an article on Professional and Social Structure in Israel, 3 Scripta Hierosolymitana,

(1956)

126, at 149. It is interesting

to speculate

how

far the enhanced

DOCTRINE

OF

PRECEDENT

231

With the establishment of the State of Israel some new problems arose. Article 11 of the Law and Administration Ordinance, 1948," introduced the Mandatory Law into Israel,” providing: “The

Law

which

existed

in Palestine

on

the

5th

Iyar,

5709 (14th May, 1948) shall remain in force, insofar as there is nothing therein repugnant to this Ordinance or to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the state and its authorities.’ This provision left open the question, what the law in Palestine was, viz., whether the Mandatory courts did accept the doctrine of precedent and whether they were right in doing so. A second and new question which arose was, whether and to what extent Israeli courts regard themselves bound by decisions of Mandatory courts. Logically the second the

Israeli

courts

question

do not

comes

regard

first, because

themselves

only if

fully bound

by

the decisions of the Mandatory courts, could the question whether the Mandatory courts were right in accepting the doctrine of stare decisis be re-examined by the Israeli courts. This problem was thoroughly discussed * in Civil Appeal! 376/46, '* where it was decided that the Israeli court would not regard itself bound by decisions which it regarded as incorrect. In the words of the then President of the Supreme Court,

Mr.

Justice

Smoira.

“To sum up: I am clearly not disregarding the importance of stability in the law when giving judgment. But, [when role of judges and lawyers in Anglo-American legal systems played a role in bringing about this change of orientation of large parts of the legal profession in Palestine. 11.

1 Laws

of

the

State

of Israel

(authorized

translation)

12. A similar provision was included in article 3 of the tion, the first legislative act enacted in Israel. Cf., ibid., 6. 13.

courts

It is interesting

are more

Mandatory

judgments.

many Israeli Judges this phenomenon. 14, 2 PS.C. 5.

that

in general

most judgments of Israeli

argued,

or in any

case

to note

thoroughly The

may

7.

Proclama-

more

be

academic

mentioned

much

orientation

as

a

partial

longer,

than

training

of

explanation

of

and

232

YEHEZKEL

DROR

the choice is between] stability and correctness — correctness should prevail.” 1 This line of action was followed in a number of Israeli judgments which overruled Mandatory court decisions.’ and in one of them!’ Mr. Justice Agranat specifically mentioned that the Israeli Supreme Court did not hesitate to overrule decisions of the Mandatory Supreme Court which were “based on a clear mistake or stood on foundations unsuitable to the important changes that occurred with the establishment of the State’. The conclusion emerges that the Israeli Supreme Court tends to apply the doctrine of stare decisis in a more relaxed and liberal form insofar as judgments of Mandatory courts are concerned. This attitude toward Mandatory judgments opened the way for a novel approach to the doctrine of precedent in regard to judgments of Israeli courts as well. In 1954 the Legal Adviser of the Government of Israel tried to convince the Israeli Supreme Court to relax the doctrine of precedent by arguing that the Supreme Court should not regard itself bound by its own decisions. More specifically, the Legal Adviser asked a Supreme Court Bench of five judges to overrule a decision made in a similar case one and a half years ago by a bench of three judges of the Supreme Court. In an unanimous judgment given in May 1954 the court reacted to this effort by explicitly adopting a fairly rigid form of the doctrine of stare decisis. In its judgment '* the court declared that there is no statutory basis for the adoption or rejection of the doctrine of precedent in Israel (or Palestine), and therefore the problem has to be discussed in terms of judicial policy, and it reached the conclusion that the Supreme Court would regard itself bound by its own decisions with only very few exceptions: 15. Ibid., at 19. It is interesting to note that the judgment tries to find support in Mandatory precedents for its decision not to follow the Mandatory cases. The judgments cited in this connection (P.C.A. 1/42, Syndic in Bankruptcy

of Salim

Nasrallah

Khoury

v.

Khayat,

1943

A.C.

507

and

P.C.A, 24/45, supra, note 3) deal in fact with a different problem, namely whether the Judicial Committee of the Privy Council was bound

by interpretations

16. 17. 18.

given

by the

Palestine

Thus C.A. 87/50, 6 P.D. 57, C.A.150/50, 6 P.D. 1005, at 1031, H.C. 287/51, 34/52, 324/52, 8 P.D,

Supreme

494.

Court.

DOCTRINE OF PRECEDENT

233

If a decision is given without reasons, if there are conflicting decisions, if a judgment ignores part of a statute or relies on an incorrect version of a statute, and — in very exceptional cases — if after a long period social conditions become so changed in an unforeseeable direction that the old precedent definitely does not suit the new conditions. ” One of the judges of the Supreme Court who did not participate in that case, Mr. Justice Witkon, declared in a dissenting judgment in a later case,*° that he disagreed with that decision and cannot regard it as binding. But this view was vigorously attacked by the other judges, who reaffirmed the strict doctrine of stare decisis as adopted in the leading case discussed above. Following these decisions, which were much debated in professional circles, the doctrine of precedent in its strict form was generally regarded as finally established in Israeli law by the Supreme Court.” Only legislative interference could free the Supreme Court and the Israeli legal system from the strict bounds of the stare decisis doctrine, as adopted by the Supreme Court. In 1955 the government published the draft of the Judicial Courts Law, * article 41 of which was devoted to the doctrine of precedent: “Every court is subordinated to rules of law decided upon by a higher court.” While this proposed article did not deal explicitly with the problem whether decisions of the Supreme Court are generally binding the Supreme Court itself, it seems to have been regarded as leaving the doctrine of precedent as developed by the Supreme Court unchanged. ** The Judicial Courts Law had an unusual legislative history. According to usual Israeli Parliamentary procedure, the draft law is submitted to the Knesset by the Government, read 19. 20. 21.

for the first time

and

discussed

Jbid., 503. H.C. 176/54, 9 P.D. 617. Cf. Hans Klinghoffer, Administrative

in general

Law

terms,

(in Hebrew)

22. Draft Law No. 226, Hatsaot Hok, (5715-1955) 64. 23. This is the intention expressed in the explanatory draft law. Cf. ibid., 76.

note

and

(1957), to the

DROR

YEHEZKEL

234

then sent to one of the permanent committees. There the bill ions is discussed in details and private persons and organizat comthe are at times given the opportunity to testify before various mittee and express their opinions in regard to the

its consiprovisions of the law. When the committee finishes to returned is e, committe in derations, the bill, as changed article discussed and the plenum of the Knesset and read

by article. This is the second reading, where detailed amendments (mainly by members of the committee which discussed the bill in details) are voted upon. Finally, the bill, as amended during the second reading, is read in toto for a third time and voted upon as a whole .‫"יי‬‎ In the case of the Judicial Courts Law, the first reading was held in the 2nd Knesset in February 1955, and after long discussions the bill was sent to the Committee on Constitution and Law. That Committee did not have time to discuss it before the election for the 3rd Knesset took place. So the Government resubmitted the draft bill, after making in it some changes, to the 3rd Knesset, where another first reading was held on November 15 and 22, 1955,

and

the bill was

again

sent

to the

Committee

on

Constitution and Law. This committee held the bill for 20 months, working it over three times (while ordinarily a bill is gone over only once). On the 27th March, 1957, the bill was returned by the committee to the House, when suddenly the Israeli Bar Association and some other bodies asked to be given an opportunity to submit additional remarks. Therefore the committee asked permission to withdraw the bill from the House and discuss it once more. The bill was resubmitted by the committee to the House and discussions began on the 10th June, 1957, when the committee

asked once

more to withdraw the bill from the House so as to be able to hear some additional comments of the President of the Supreme

Court.

Only

on

the

16th

July,

1957,

was

the

bill

finally returned by the committee to the House and read for the second time. This extraordinary and lengthy procedure reflected some basic disagreements within the Knesset and the courts and between 23a,

the Members Cf. Marver

of the

H. Bernstein,

Knesset,

The

Politics

the

courts

of Israel

and

(1957),

pp.

inte100 +.

DOCTRINE

OF

PRECEDENT

235

rested professions] groups. Among the provisions of the law which stood in the center of the discussions, the article dealing with the doctrine of precedent occupied a prominent place. During some stages of the discussion in the committee, there was a tendency to abolish the doctrine of precedent in respect to the decisions of most courts, and only after rather strong outside pressure was applied * and after lengthy discussions in the committee, was compromise reached. This compromise was expressed in article 33 of the Judicial Courts Law, as proposed by the committee: °°

“a.

A Court is to be guided by rules of law decided by a higher Court.

b.

A rule of law decided by the Supreme Court binds all courts, with the exception of the Supreme Court itself when five or more judges are sitting.’

To this paragraph, suggested by a majority of the commit-

tee, seven amendments 1.

were offered: °°

To leave out the whole paragraph,

matter to the courts themselves. 2. To add in sub-section b after

the

and thus leave the words

“all

courts”

the words “and all tribunals’. The purpose of this amendment was to make clear that the Religious Tribunals, Military Tribunals and various other judicial bodies are bound by decisions of the Supreme Court. a, to substitute

3.

In sub-section

4.

To leave out sub-section

the

word

for

“bound”

the words “to be guided”, thus strengthening the binding au‫ו‬‎ thority of decisions by the District Courts. b and substitute

for it a new

It is interesting to note that — as far as available material can 24. acbe relied upon — none of the usual economic pressure groups was that tive in this case. One possible explanation might be offered, namely the it is impossible to predict the economic consequences of changes in a vested stare decisis doctrine, and therefore no economic group had

interest

in the

present

bringing

about

changes,

situation

The

and

groups

none

which

had

were

a clear-cut

active

interest

in this case

in

seem

chatherefore to have been mainly of a professional and ideological interacter, though it may well be that some lawyers had a material rest in preserving or changing the doctrine of stare decisis. on I am indebted to Prof. Bertram Gross for his valuable comments this matter. 3rd Knesset, 2nd Session, 25. tary Protocols, in Hebrew). 3rd Knesset, 2nd Session, 26.

Divrei

Haknesset

2146

31 Divrei

Haknesset

2151:

31

(Parliamen-

236

YEHEZKEL DROR

sub-section, saying “A Court is not bound by its own decisions”. This amendment would have weakened considerably the doctrine of precedent, leaving only the guiding authority of higher court decisions — which in any case exists in all countries and cannot be regarded as an expression of the stare decisis doctrine. 5. To take out the last words of sub-section b, “when five or more judges are sitting”. The effect of this amendment is to leave the Supreme Court free to overrule its own precedents when — as is usually the case — three judges are sitting. 6. To take out the last part of sub-section b “with the exception of the Supreme Court itself when five or more judges

are sitting’. This amendment would introduce the strict form of the stare decisis doctrine, leaving the Supreme Court bound by its own precedents. 7. To substitute in sub-section b the words ‘when all judges are sitting” for the words ‘when five or more judges are sitting”. This amendment would leave the authority to overrule prior decisions of the Supreme Court to plenary sessions of the Supreme Court only, with all judges (at present — nine) participating. Of

these

seven

amendments,

six

were

rejected

and

one

— amendment No. 5 — was adopted.*’ Thus the Knesset gave statutory authority to a variant of the doctrine of stare decisis: Decisions of the Supreme Court bind all other courts but not the Supreme Court itself, while decisions of the District Court constitute guides for the Magistrates’ Courts and other inferior courts. Before we examine in some detail a few additional aspects of this piece of “legal engineering” by the Knesset, it will be interesting to analyse the different arguments made at various stages of the discussion regarding the suitability of the doctrine of precedent for Israel. It will be convenient to distinguish for this purpose between three main positions. One extreme position, adopted by Professor Tedeschi and by those Knesset members who proposed amendment No. 4, rejects the doctrine of stare decisis altogether. Another extreme position, represented by 27.

38rd Knesset,

2nd Session,

37 Divrei

Haknesset

2491

ff.

DOCTRINE

OF PRECEDENT

237

the decision of the Supreme Court and by the Knesset members who proposed amendment No. 6 (perhaps also by those who proposed amendment No. 1), accepts the doctrine of stare decisis in its English version, where the Supreme Court (in England — the House of Lords) is in most cases considered bound by its own decisions. The third position is an intermediary one; it accepts the doctrine of precedent in part but leaves the Supreme Court free to overrule its own decisions. This position finds partial expression in the opinion of Mr.

Justice

mentioned

Witkon

above,’

and

was

finally

adopted by the Knesset. The arguments expressed in favour of these positions can be summed up as follows: The opponents of the doctrine of stare decisis emphasized mainly ideological reasons and the need to adjust the law to social change. Professor Tedeschi in his already mentioned article on The Doctrine of Precedent in Present and Future Israeli Law 5 and in a recent article on “The Ways of Judicature in Israel” *° discusses at length the undemocratic character of the doctrine of stare decisis, which ,in effect, authorizes judges to create general legal norms, e.g., to make law. Prof. Tedeschi claims that such a practice is not in accordance with the doctrine of division of powers and that furthermore the judges do not have the necessary means to study professional and public opinion on the various legal problems, so that judge-made law will not express the social will. This argument, and especially its first part dealing with the doctrine of division of powers, was eagerly adopted by some. Knesset members, who expressed apprehension at the mixup between legislative and judicial functions. Neither in the Knesset nor in the judgments supporting the doctrine of precedents was this argument contradicted. Only Mr. Justice Witkon dealt with it indirectly when, while arguing in favour of permitting the Supreme Court to change its decisions, he mentioned that the Knesset is too busy and cannot always 28. In that judgment (supra, note 20, at 624) Mr. Justice Witkon only discussed the problem whether the Supreme Court is bound by its own precedents; he did not express any opnion on the binding authority of Supreme Court decisions towards inferior courts. 29.

Supra,

30.

1 Hed Hamishpat

note

9.

305

(in Hebrew).

238

YEHEZKEL

DROR

adjust the law to new needs, and therefore the Supreme Court must preserve its freedom of action. Here we enter the second and perhaps more important line of argument. The issue now is the familiar one of legal stability and predictability v. adjustment of law to social change. Professor

Tedeschi,

Mr.

Justice

Witkon

and

the

members

of the Knesset who supported relaxation of the doctrine of stare decisis emphasized the predominant importance in a country like Israel, of elasticity in the legal system, while the Judges of the Supreme Court who supported the majority opinion favoring the extreme form of stare decisis emphasized the need for legal security and calculability of the legal consequences of social action. Some additional arguments were brought into play. On one the one hand, stress was laid on the pragmatic difficulty of knowing the law dispersed in thousands of precedents and the need to preserve the freedom of action of individual judges on all levels of the judicial hierarchy; on the other hand, the importance of standarized decisions within the judiciary was mentioned. But the real point of the whole discussion revolved around the problem of stability v. adjustability of the law. Even in High Court Case 287/51 the judges added to the few grounds admitted in England 88 justifying a departure from the self-binding authority of Supreme Court judgments the additional ground that in some special cases, after a long period has passed and conditions have basically changed, the Supreme Court may overrule its decisions. Mr. Justice Witkon reacted to this passage and put the difference in approach into sharp focus in the following passage: *! “We are at the beginning of our development as a nation and a society and are still far away from the crystallization of the legal structure of Israel. In such a situation it is necessary, sometimes, to reconsider legal rules, even if they were decided upon only a short time ago and even if it cannot be claimed that the conditions of life have changed...”

While this approach did not gain many adherents in the Supreme Court or among Israeli lawyers, the Knesset did 31.

H.C. 176/54,

supra,

note

20, at

628.

DOCTRINE

OF

PRECEDENT

239

reach the conclusion that the dynamic character of Israeli society makes it essential to preserve the freedom of action of the Supreme Court to change its own decisions. In connection with this action by the Knesset, at least two questions can be asked: The first one is, whether article 33 as finally adopted by the Knesset is the best possible solution to an admittedly difficult problem on which one finds diametrically opposed views in the literature. The second question is, whether, assuming that the solution adopted by the Knesset is a good one, it is also an effective one; in other words, whether the door opened by article 33 will indeed be used by the Supreme Court in order to revise its decisions or whether the conservatism operating in ever legal hierarchy will in fact result in the Supreme Court being extremely reluctant to use the discretion granted to it. Let us first consider the validity of the solution selected by the Knesset. Though the ideological argument does not seem to have influenced the outcome of the discussion, it must be more closely considered. It may well be that granting the courts or some of them, authority to pronounce decisions binding future cases is somewhat contradictory to the traditional separation of power concept, but this does not prove anything regarding the desirability or otherwise of doing so. The real question is, whether the doctrine of stare decisis does in any way impair the democratic structure of the regime by limiting the authority of the elected body, which is presumed to represent the population.’ Even without considering the possibility that the courts* too fulfill representative functions, "' which in certain matters may more accurately reflect opinions than the politically elected representatives, it seems that in a country like Israel, where the Knesset is supreme (in the sense that its authority is not limited by a formal constitution), granting the courts or some of them authority to make binding decisions does in no way impair the supremacy of 32. Study

Cf.

Benjamin

of Israel

Akzin:

(supra,

note

Codification 10), 6.

in

a

New

State:

A

Case

33. We are dealing here with appointed judges. When the judges are popularly elected, the issue becomes entirely different. 34. As first suggested by Arthur F, Bentley in his book: The Process of Government (1908), chapter 14.

YEHEZKEL DROR

240

the elected body. From the point of view of the optimum division of governmental functions between the various branches and organs of government, it would seem that if the predominant role of the elected body in policy making and over-all supervision is to be preserved, asmany as possible of the less crucial jobs ought to be handed over to other branches and organs

of the state.

In all countries

it has

become

necessary

to release the legislature from the burden of too much legislative work by enhancing the scope of delegated legislation; similarly it seems reasonable to impose as heavy a load as possible on the courts, which

after all are

composed

of very

carefully selected legal experts * with much experience in the application of law to concrete cases and in the kind of lawmaking which is associated with this process. As long as the Knesset is free to overrule by legislative fiat decisions of the court which it does not like — as was done for instance by article 33 of the Judicial Courts Law — it would seem that giving the decisions of the Supreme Court binding authority does not necessarily impair the democratic character of the regime or disrupt the desirable division of functions between the legislature and the judiciary. More difficult is the question how to balance the need for legal security against the need for adjusting the law to social change and for experimenting to find optimal solutions to the various problems coming before the courts. Legal history shows that the point of balance differs from society to society and as between different periods in every society. As shown clearly by Roscoe Pound **, among others, legal systems seem to pass different stages of development during some of which the need for stability is predominant while at others the need for change is more important. There is at least one significant difference between these 35.

In Israel, the selection and appointment

the Judges

Law,

1953

(7 Laws

of the

State

of judges is regulated by of Israel

124),

which

of Law

(1954),

esp.

lays

down minimum qualifications (in terms of experience, training etc.) for the various levels of the judiciary, and sets up a special Appointments Committee which selects the judges. This Appointment Committee is composed of nine members: the President of the Supreme Court and two additional Supreme Court judges; the Minister of Justice and another member of the Government; two members of the Knesset and two practicing lawyers. 6.

H.g., An

Introduction

to the Philosophy

ch. 1.

DOCTRINE

OF PRECEDENT

241

historic developments and the present issue: During most historic periods there was little conscious effort to establish a degree of elasticity of the legal system, while now we presume to engage in “legal engineering’ which among other effects, also aims at increased elasticity of the law itself. The question is, whether we know enough to be able to determine what the optimum balance for our period and society is, instead of waiting for the balance to be reached through trial and error, pressure and counter-pressure and other internal processes operating within every legal system. "' It must be admitted that the present stage of the social study of law does not give much assurance that we are indeed sufficiently informed on the internal social and legal processes to permit valid diagnosis and prognosis. But there are some guide-lines which might serve as criteria for choosing the best possible alternative. Recent opinions seem to support the suggestion that there is no significant difference in legal security between Europe, England and the United States despite the differences between them in regard to the acceptance of the doctrine of stare decisis. Even in regard to stare decisis it might be that the practical

differences

are much

smaller

than

often

supposed:

both on the Continent and in the Anglo-American jurisdictions courts do in fact make law**; both on the Continent and in Anglo-American jurisdiction precedents are in most cases followed and in both Continental and Anglo-American jurisdictions undesirable precedents are often disregarded, though by different techniques and to a different extent. ** Max Weber suggested that security of law and calculability of the legal consequences of social acts depend more on the substantive rationality of the system than on the formal rationality expressed in the doctrine of Stare decisis and similar formalized 37. Those members of the Knesset who offered amendment No. 1 were of the opinion that it is better to leave this matter to be slowly out

worked

38.

Analysis 39.

by the

Cf. Arthur

On

(1956) the

themselves.

courts

T. Von

Mehren,

The

Judicial

Process:

A

Comparison

Journal of Comparative Law 197. i between the Continentaal and similarity

5 American

differences

the Anglo-American attitudes towards precedents, cf. (1934) Law Continental and in English Precedent

and W. Friedmann,

Legal Theory

(1953) 374 ff.

and

A. L. Goodhart, 40, L.Q.R. 50

242

YEHEZKEL

DROR

techniques: *° There is a world of difference between the justified expectations of parties to a transaction and the formalized conservatism of precedents. "1 Especially in a country with a fluid economic situation and a high rate of social change such as Israel, it may well be that in order to uphold justified expectations of the parties to a transaction it is sometimes necessary to overrule precedents. The problem here is not only one of changing social conditions, but of the need to permit learning from experience, 1.e., from trial and error. The evolution of suitable legal solutions to the various novel problems faced by the Israeli courts in the application of the new social and economic legislation of the Knesset must take some time and it seems desirable to enable the Supreme Court to try out different solutions before finally adopting any one. These considerations support the conclusion that the main danger faced in this respect in Israel is not that of breaking down legal security but that of impairing the role of law as a way to solve social conflicts, and therefore the Supreme Court ought to be free to improve on its decisions rather than be. bound by them. While thus supporting the freeing of the Supreme Court from its own precedents, it seems to me reasonable to limit the freedom of experimentation and adjustment to the Supreme Court only. If the various District Courts and Magistrates’ Courts were to be given freedom to rule contrary to decisions of the Supreme Court, the internal hierarchic structure of the courts might break down and the results might well be anarchy rather than careful change of the law. Even though the Supreme Court could, in the final analysis, overrule and unify decisions of inferior courts on appeal or otherwise, still the possibility of long-drawn-out differences

40. Max Weber on Law in Economy and Society (1954), ch. 8. 41. ject

H.C. matter

176/54, of

the

supra,

note

proceedings

20, is a good case in point. The

was

an

application

for

an

order

subnisi

against a pensions board, which had refused to grant a pension. Mr. Justice Berinson agreed with Mr. Justice Witkon that the applicant should be granted an order nisi but felt himself bound by an earlier precedent and therefore joined the President and refused the application. It is rather difficult to see what justified social expectation would hav been impaired if the court had overruled the preceden t and granted an

order

nisi.

DOCTRINE

OF PRECEDENT

243

of opinion between the various District Courts or Magistrates’ Courts and the waste of energy and time that would result from such divergences or were these courts to ignore Supreme Court decisions, make it desirable in Israel — where systematic codification is still excluded from some very important areas of law — to bind the District and Magistrates’ Courts to follow the decisions of the Supreme Court. Our examination supports two of the three elements of article 33, vie., the binding authority of decisions of the Sureme Court on all other courts; and the freedom of the Supreme Court to overrule its own precedents. It is a little harder to justify the third element of article 33, viz. — that decisions of other courts (i.e., mainly District Courts) have only guiding significance for the lower courts )1.0., mainly Magistrates’ Courts). In the Knesset the argument was made that it is undesirable to grant binding authority to District Courts’ decisions because different District Courts might make conflicting decisions. But conflicting decisions are generally recognized as an exception to the stare decisis doctrine and their occurrence is not a sufficient reason for leaving the Magistrates and other inferior courts free to ignore decisions of the District Courts if they wish to do so. It is still too early to tell what the real effect of this provision will be. Much depends on the interpretation that will be given by the courts to the concept “‘to be guided.” * This brings us to our last problem, to which only the future can give a definite answer. Article 33 can bring about significant changes in the operation of the Israeli judiciary or it can become a dead letter having no real impact on judicial action. This depends on the orientation of the judges and their willingness to change their position as expressed in High Court Case 287/51. The Supreme Court can now change its decisions if it wants to do so, but only if it wants to do so; it is 42.

In Hebrew

.‫וחנוי‬‎

This

concept

is difficult

to translate.

It is

’. In the somewhat stronger than “guided” and weaker than ‘directed the intenthat stated ee Committ the of n Chairma the Knesset itself to consider the tion of this term was to instruct the inferior courts them), but they decisions of the District Courts (ie. not to ignore 2nd Session, 37 would be free not to follow them. (Cf. 3rd Knesset, Divrei Haknesset 2497, in Hebrew). regard themI do not believe that the courts would not necessarily selves

bound

by this

interpretation

given

in the

Knesset.

244

YEHEZKEL

DROR

still too early to judge whether legal conservatism or the desire to improve the law and follow the wishes of the Knesset will prove to be the predominant trend. The changes introduced by article 33 are of more than dogmatic or local interest. Here we have a clear case of “legal engineering”, where consciously an effort was made to change

the internal operation of the legal system in order to improve its working and make it better equipped to fulfill its role in a democratic and dynamic society. Follow-up study of the real consequences,

if any, of this reform

should enable

us to dee-

pen our understanding of legal systems and their internal working and help us to develop a policy approach to law, which aims at improving the effectiveness of law as a way to solve social problems. The experience to be gained from the Israeli experiment may well make a significant contribution both to the solution of the concrete problem of the optimum degree to which the doctrine of stare decisis should be followed in quickly developing societies with an inheritance of English law, and to the understanding of the possibilities and limitations of conscious efforts to shape by legislative action the working of the legal system.

DISPOSITIONS

IN CONTEMPLATION SOME FORMULAS BY

REUVEN

OF

DEATH:

YARON

In this paper it is intended to discuss three phrases occurring in dispositions in contemplation of death, in the Talmud and in various non-Jewish sources. I.

While he was walking on his feet in the street. One type of Talmudic disposition in contemplation of death is an irrevocable gift of property, with immediate transfer of ownership to the donee coupled with retention of usufruct by the donor. It could originally, in Tannaitic times, be made only by a person in good health. Its name was mattana — ‘gift’, later more fully mattenath bari’ — ‘gift of one who is in (good) health’ +. Mattenath bari’ would begin with an assertion that the donor was in good health. This was expressed by the formula kad hawe mehallekh ‘al raglohi beshuqa’ — ‘while he was (or ‘at the market’ ’). It is

walking on his feet in the street’

not possible be used in of the first general use

to fix a certain time when this formula began to mattenath bari’, but Abaye, a Babylonian Amora half of the 4th century A.D., quotes it as being in (Babylonian Talmud, Baba Bathra 154a). A siminot however

lar expression,

part of a set formula,

occurs

in

another context in Mishnah Gittin 7.3. The question discussed there is the validity of a ‘death-bed

divorce’,

if the husband

‘recovered and walked in the street’ (‘amad wehalakh ba-shuq), but subsequently died. Outside the Talmudic sphere similar formulas are to be found in late-Byzantine and Coptic dispositions in contemplation of death. This has already been pointed out by some scholars *. finally 1. The term came eventually to be used in a wider sense. It than includes every gift, even not made in contemplation of death, other mattenath shekhiv mera‘, the revocable gift of a person lying ill, 2. Shuq can be rendered ‘street’ or ‘market’. 3.

iA. Gulak,

P. London

Das

77 and

Urkundenwesen

to a Coptic

im

Talmud,

will, K.R.U.66 —76.

1935,

(For

p. 136

refers

all the

to

Coptic

246

R. YARON

P.Oxy.1901, a 6th century will, is made while the testator is

‘walking on the earth’, ént %‫ץ‬‎ Bafidov

(line 61).

In P. London 77 (‘the testament of Abraham

of Hermonthis’).

of uncertain date, the formula is: ëxt %‫ץ‬‎ Padilov nai 0" % Toto

(line

12),

In P. Cairo Masp. 67151, of the year 570:

xa?

‫צ‬000‎ 78 xat

Syextrw nat an” 070066 300000 tx ovvyiiy moxttov (line 29f.). The expression used in P.London 1727 is an exact replica of the Talmudic formula. This document, of the year 583, is a succession pact of a husband and wife, who are said to make it

xt 050%

PadiCov-s¢ én” ayooate (line 19f.) *.

There is indeed disagreement as to the correct interpretation of the phrase in P.London 1727. The relevant passage runs ent modüv udiGavres ax” 200416 mapspyouevar ele 2007‫ףש‬‎ thy byypa. gov éuokoyixr. Bell, the editor of the London papyri, remarks that

‘napspyéusvotin Spite of the succeeding space (which is perhaps not intentional) must go with

ele tabcHy “TA,

It should of

course be nxpspyéuex’. Arangio-Ruiz, F.I.R.A. III, no. 67, takes mapspxousver into the first part and translates: nostris pedibus ambulantes et in foro frequentes, ad hanc (venimus) scriptam declarationem. Each of the two interpretations has its difficulties. Bell must assume a grammatical mistake. Arangio-Ruiz must interpolate a word; this is not very satisfactory in a document anything but laconic. Moreover this word is suspiciously similar in meaning

to that which,

unlike Bell, he assigns

to the

first part of the sentence. The Talmudic parallel strongly supports Bell’s rendering as against that of Arangio-Ruiz. Similar formulas occur in Coptic documents of the 7th and 8th centuries, recently the subject of detailed study by Till’. Usually the state of the testator’s health is expressly mendocuments

suchungen

mentioned

auf Grund

in this paper

see now

der koptischen

W. Till, Erbrechtliche

Urkunden,

Unter-

1954.) J. J. Rabinowitz,

Jewish Law, 1956, p. 198, n. 40, refers to P. London 1727. See now the Same author’s Studies in Legal History, 1958, Di Ae. alit4. I had opportunity to discuss this text with Professor Rabinowitz ; however, he must not be held to agree with the opinion expressed here. For his views see his writings, quoted in the preceding footnote, 5. See footnote 3, above.

DISPOSITIONS

IN

CONTEMPLATION

OF

DEATH

247

tioned. In some cases we are told that the testator (or donor) is walking about (K.R.U. 66=76, 68, 71), and following his usual business. However, one must beware of regarding such

a declaration as clear evidence of the testator’s true state of health. K.R.U. 106, a deed of gift of the year 735, has wahrend ich lebe, aus- und eingehe, yet a few lines later we are told that the donatrix is seriously ill, and indeed she dies before the deed has been written. So also K.R.U. 74 speaks of the 0010600 067706004 testator ‘following his usual business’ but again 67151); (part of the formula used in P.Cairo Masp. we learn that the testator is ill: während ich noch lebe und ohne Sinnesverwirrung und Sinnestriibung auf meinem Bett liege...

cufPsux mpattesba,

also

occurs

in K.R.U.

65 and

75,

but in these wills we are given no further information about the health of the testator. What is the import of phrases like ‘walking about’ in the Byzantine and Coptic documents? It would be wrong to assume that they imply that bodily health was regarded as necessary for testamenti (or donationis) factio. As Kreller points out, there are other, earlier, wills in which

tator is ill, is expressly mentioned:

the fact that the tes-

P.Lips.29:

7f, P.Oxy.990.

Moreover all the Byzantine dispositions here under discussion were made shortly after the publication of the Corpus Iuris, which stresses that in eo qui testatur eius temporis quo testamentum facit integritas mentis non corporis sanitas exigenda est (D. 28.1.2); senium quidem aetatis vel aegritudinem corporis sinceritatem mentis tenentibus testamenti factionem non auferre (C.6.22.3pr.) Greek law denied testamenti factio to a sick person’, but in Egypt there is no evidence for such a rule. The Coptic documents frequently tells us that the testator or donor is ill: in addition to K.R.U. 74 and 106, already mentioned, we should refer to K.R.U. 69, ich sitze auf meinem Bett, and K 4912, ich bin zwar krank wie ein Mensch. Incidentally, the phrase in K.R.U. 69 and 74, that the testator is lying (or sitting) in his bed, reminds us of the Talmudic expression rami be‘arse — ‘lying in his bed’ which occurs in the revocUntersuchungen

6.

Erbrechtliche

7.

See J. H. Lipsius, Das

Papyrusurkunden, p. 567.

auf

Grund

der

graeko-dgyptischen

1919, p. 310.

attische Recht

und Rechtsverfahren,

1905/15,

248

R. YARON

able dispbition of a person lying ill (mattenath shekhiv mera‘). No similar phrase occurs in Greek or Roman wills. Not convincing seems the suggestion put forward by Rabinowitz that these phrases imply that these Byzantine and Coptic dispositions,

like the Jewish

mattenath

bari’, were

meant

to

be irrevocable. This might be acceptable as far as P.London 77, P.Oxy. 1901 and P.London 1727 are concerned. P.London 77 declares expressly that it is to be irrevocable. Of P.Oxy. 1901 part only is preserved, and it is not evidence

one way or

the other. P.London 1727 may have been meant to be irrevocable, since it is not a true will, but a succession pact between husband and wife. The survivor is to inherit all the property left by the deceased,

and on the survivor’s

death

it

is to pass to the children of the couple. Irrevocability is not stressed in this document. Even if it is binding as a contract, there is nothing to prevent the two parties from agreeing on its annulment,

to the detriment

of the ultimate beneficiaries,

their children. There is, however, nothing to warrant the opinion that P.Cairo Masp. 67151 was meant to be irrevocable. One particular legacy in it was to have the force of a donatio inter

vivos, that is to Say, it was to be irrevocable

(line 124ff). This

proves that the will as a whole was revocable at the testator’s pleasure. As for the Copitic wills, Till holds that they were freely revocable, and I see no reason for dissent from this

view.

The true reason for the use of the formulas concer ning good health or illness of the testator seems to be in the preoccupation of the Byzantine scribes (and of their Coptic successors) with the mental health of the testator. The simple statement of the earlier Hellenistic wills, that the testator was voëiv xal ppoväv, has become very elaborate. Many near-s ynonymous expressions assure us that the testator is in his right

mind, and it is in this context

that the statements

about the

bodily health of the testator occur. Some of them stress the testator’s good health, so as to anticipate any possible objection to the validity of the will on the ground that the mind of the testator was under the influence of a bodily illness. 8.

Op. cit., p. 64f.

DISPOSITIONS

IN CONTEMPLATION

OF

DEATH

249

Others admit illness but emphasize that the integritas mentis is unimpaired (K 4912, Ich bin zwar krank, . . . (aber) ich bin bei Verstand). It was thought preferable to make an express declaration about the health of the testator, — either that he is well and therefore compos mentis, or that he is ill but none the less compos mentis. What is the relationship between Abaye’s phrase, mentioned at the beginning of our discussion, and the phrases occurring in the late-Byzantine and Coptic dispositions? This is a question more complicated than one might think at first sight. Abaye precedes the Byzantine dispositions by more than 200 years. An independent parallel creation of phrases of this kind is not very plausible (though not impossible). If, therefore, there had been no similar phrase in any other source, it would have been a fairly safe conclusion that the phrase was taken over into the late-Byzantine dispositions (and hence into the Coptic ones) from the Talmud. But we must take into

account the occurrence of a similar (though not identical) phrase in some very early Egyptian dispositions in contemplation of death. Five inscriptions, of the 4th and 5th dynasties (about the 25th century B.C.), all speak of dispositions made

while the donor

(or testator) was

‘nh hr rdwj.f —

‘li-

ving upon his (two) feet'?. 1 Is this early Egyptian phrase to be regarded as the remote ancestor of the phrase here under discussion? This is not impossible, but he would be a bold man who would confidently give an affirmative answer. The difficulty is obvious indeed: a jump over some 3000 years is involved, 3000 years. during which I have not found anything similar. True, dispositions in contemplation of death are very rare in later Egyptian sources, yet still there are some, and apparently they contain nothing that could be quoted in comparison. Maybe someone familiar with Egyptian sources (and, one might add, having more satisfactory library facilities at his disposal) will be able to throw further light on the matter. Still, I should like to compare the disposition of Prince Nekure” and K.R.U. 66=76. Prince Nekure ‘makes the 9. J. H. Breasted, Ancient Records of Egypt I, sections 182, 193, 201, 224; the mastaba of Wep-em-nefert, published by Selim Hassan, Excavations at Giza, 1930/31, fig. 219. 10. Breasted, sec, 193.

250

R. YARON

[command],

(while)

living

upon

his

(two)

feet,

without

ai-

ling in any respect’. The Coptic testator refers to her will das ich ausgestellt habe, während ich lebte und wandelte, — befiel. Coincidence? bevor mich irgendeine Krankheit Perhaps. Yet the reference to a somewhat mythical common ancestor is too simple an explanation for some of the affinities of the Jewish and Byzantine-Coptic material. Even if we suppose that the early Egyptian phrase is relevant, this is only part of the story. In the Byzantine and Coptic material the phrase quoted from P.London 1727 stands in a class apart in its exact correspondence to the Talmudic expression, a correspondence for which dependence seems the only likely explanation. A common earlier Egyptian source is unsupported by evidence, and not probable also because of the solitary occurrence of this version in the Byzantine material. On the Jewish side there is an interesting development to be discussed and accounted for. Comparison of Abaye’s phrase with the formulary of R. Saadya Gaon shows that the phrase has undergone an important change: in the latter it is used in the disposition of the shekhiv mera‘, in order to stress the mental health of the sick person. The formula runs as follows: . . and his mind was at ease, and his words in his mouth, he was able to negotiate, to answer, and to say ‘no’ to ‘no’ and ‘yes’ to all other men who walk on their feet in the

were right ask and to ‘yes’ :!, like street *.

In Talmudic law the phrase ‘while walking on his feet in the street’, implied that the documents in which it occurred was a mattenath bari, the irrevocable gift of a person in good health. In Saadya Gaon’s formulary it was used in the disposition of a sick person to stress his mental health. There are some 600 years between Abaye and Saadya Gaon, and we have no means of knowing when exactly this change took place. 11. Ie. gives a negative answer where a negative answer is correct, an affirmative answer where an affirmative answer is correct. 12. Supplement to Tarbiz, vol. I (1930), p. 68. See also Hai Gaon’s formulary, ibid., p. 31.

DISPOSITIONS

IN CONTEMPLATION

OF

DEATH

251

It may have occurred relatively early; if so, it would be independent of the meaning of the phrase in the Byzantine and Coptic material, where it is all along connected with mental health. Against this possibility speaks the fact that we are left without an explanation of this switch from one type of document to the other, and from bodily health to mental health. When we recall that for Abaye the employment of this phrase defines the nature of the document, one will look for a good reason for the change, yet there appears to be none. More likely then the change in Jewish law is relatively late; if so, it may reflect the influence of late-Byzantine or Coptic legal style. A passage similar to that quoted from Saadya Gaon’s formulary, occurs in K.R.U. 66, of the first half of the 8th century: -[ ich lege dieses Testament, das eine Willenserklärung ist, nieder, wahrend ich bei Verstand bin, meine Vernunft

in Ordnung ist und ich mit den Dingen der Welt beschaftigt bin wie jeder auf Erden wandelnde Mensch. The new use of the phrase ‘walking in the street etc.’ may perhaps

have

been

introduced

into the Jewish

documents

by

Saadya Gaon himself, who was born and educated in Egypt, and consequently had opportunity to be acquainted with Coptic wills *. Obviously this is a point on which there is no need to dogmatize, since for the purpose of our enquiry no particular importance attaches to the identity of the person responsible for the change. In Hai Gaon’s formulary deeds of mattenath bari’ have also been preserved “. It is significant that the phrase ‘while walking etc.’ does not occur in them. Other expressions are used to stress the fact that the gift is irrevocable. This is in accord with the fact (true indeed also for the time of Abaye) that there is nothing to prevent a person who is lying ill from making an irrevocable gift. ‘Walking on his feet in the street’ 34, .‫ת‬‎ 9. The 13. Pace J. 1, Rabinowitz, Studies in Legal History, p. from ‘while change the is with d concerne here only question we are walking’

(in the Talmud)

to ‘like others

walking”

(in the

Gaonic formu-

mera’. lary), and the switch from mattenath bari’ to mattenath shekhiv word contains The fact that this is ‘a legal form in which almost every denied, but does an allusion to some Talmudic rule or phrase’, is not hand. in question the to answer an not furnish 14.

Op,

cit., n.

12, above.

Pp.

29, 30.

252

:

R,

YARON

is completely detached from its original context and now figures in mattenath shekhiv mera‘ as one of many assertions of saneness. II.

From today and after death. The formula mehayyom ule’ahar mitha — ‘from today and after death’, occurs in mattenath bari’, and gives expression to the two main features of this type of disposition: immediate transfer of ownership to the donee, retention of usufruct by the donor. We find it in the definition of mattana, given in the Babylonian Talmud”. (Which of the dispositions under consideration is) a mattana? — Any in which is written: From today and after death. It also occurs in Mishnah Baba Bathra 8.7: Whoever assigns his goods to his sons must write, ‘From today and after death’, so R. Judah. R. Jose says, he need not do so... R. Jose held that the words ‘from today’ were unnecessary, since the date of the document would carry the same information, while R. Judah refused to recognize the date as operative for the purpose . Incidentally, the law was laid down according to the view of R. Jose. None

the less, the fact that

it was superfluous did not prevent the survival of the phrase. It recurs, in a slight variation, in Hai Gaon’s formulary”. The phrase mehayyom ule’ahar mitha — ‘from today and after death’ is strange. Le’ahar mitha — ‘after death’ is but the Hebrew translation of perd vhv veleurév 3. Why was mehayyom

—

‘from

today’

added?

The

Greek

phrase

itself

was not too clear, and sometimes doubts may have arisen whether ownership was to pass immediately or only after the death of the donor. Such a possibility is illustrated in our time by the doubts of Kreller about the import of the phrase. No wonder that someone, ex abundanti cautela, hit upon the idea of adding the clarifying mehayyom — ‘from today’. 15. Baba Metzia 19a and Baba Bathra 135b, 16. See the parallel passage in the Tosephta, Kethuboth 8.4. 17. See p. 29, last line: me‘akhshaw le’ahar mothi — ‘from now risesmy death’; p. 30: me‘akhshaw le’ahar mitha — ‘from now after death’ 18. Cf. already Rés i cit., p. 133. 19. Op. cit., p. 186,

DISPOSITIONS

IN CONTEMPLATION

OF

DEATH

253

| The formula ‘from today and after death’ is taken over also into bills of divorce of a sick person: Mishnah Gittin 7.3:

(Whoever

says)

‘This is thy bill of

divorce if I die’, or ‘this is thy bill of divorce if I die of

this sickness’, death’ —

or ‘this is thy bill of divorce

he has said nothing.

(But

after my

if he said, ‘this is

thy bill of divorce) from today if I die’, or ‘from now if I die’, this is a (valid) bill of divorce. ‘From today and after death’ — it is a bill of divorce and yet it is none, and if he died she performs halitsa and does not contract levirate marriage . . The Tosephta, Gittin 7.3, has a somewhat different version: Whoever says to his wife, ‘this is thy bill of divorce from today and after my death’, Rabbi (Judah the Prince) Says, (this is a valid) bill of divorce, and the Sages say, it is no

bill of divorce;

if he died she performs

halitsa

and does not contract levirate marriage”. While in gift ‘from today’ is superfluous, in bills of divorce ‘after death’ is the obstacle to the validity of the document. The reason for the rejection of this formula in bills of divorce is discussed in Palestinian Talmud, Gittin 7.3: R. Simeon b. Yagim brought the matter before R. Johanan: ‘From today and after death’ — his gift is a gift; . ‘from today and after death’ — this is no bill of divorce? R. Ze‘ira in the name of R. Johanan: Bills of divorce are not like gifts. R. Ela: In case of a gift, since he said ‘from today’ it is a perfect gift; for what purpose did he write in it ‘after death’? — to retain usufruct. And in bills of divorce, since he wrote in the bill of divorce ‘from today’ — she is divorced; for what purpose did he write ‘and after death’? — in order to retain her body? R. Bun bar Kahana said before R. Ela: (He wrote it in order) to retain her handiwork. He said to him: We do not find a woman married to one and her handiwork belonging to another. R. Ela’s question, ‘for what purpose did he write “and after death”? — in order to retain her body?’, is intended as a 20. According to Biblical law, the widow of a childless man is to be taken into marriage by the brother of the deceased (‘levirate marriage’). This can be avoided only by the performance of a proper ceremony (the halitsa), which expresses the unwillingness of the deceased husband’s brother to take her (see Deut. 25. 5 ff). Levirate marriage tended to fall into disrepute already in Tannaitic times (see Mishnah Bekhoroth

vived,

and

1.7),

and

only upon

is

not

practised

its performance

nowadays;

can

but

the widow

halitsa

marry

has

again.

sur-

254

R. YARON

reductio ad absurdum. The very purpose of the bill of divorce is to set the wife free, yet by adding ‘and after death’ the husband retracts the bills of divorce. R. Bun bar Kahana attempts to assign a function to ‘after death’ in bills of divorce. It is a duty of a married woman to perform certain tasks for her husband’’. By inserting the words ‘after death’ into the bills of divorce the husband wants to continue to enjoy her handiwork. R. Bun bar Kahana’s at-

tempt is rejected. The formula ‘from today and after death’ was also employed in deeds of manumission, but owing to the close assimilation of these

to bills of divorce,

such

was

a deed

held

to be in-

valid: ... and also whoever says to his Tosephta Gittin 7.3: maid, ‘this is thy deed of manumission from today and after my death’; Rabbi (Judah the Prince) says, this is a (valid) deed of manumission, but the Sages say, deeds of manumission of slaves are like bills of divorce of women ... For another case where a formula of the type ‘from today and after (a certain time)’ may cause complications, see Mishnah Kiddushin 3.1: . . . (Whoever says to a woman, ‘Be thou betrothed to me) from now and after thirty days’, and another came and betrothed her during the thirty days, she is betrothed

and

she

is not

betrothed;

and

if she

was

the

daughter of an Israelite and he a priest, or if she was the daughter of a priest and he an Israelite, she may not eat of heave—offerings ”*. Tosephta Kiddushin 4.3: ‘From now and after thirty days,’ and another came and betrothed her during the thirty days, she is betrothed to the second. How shall they act? The one gives her a bill of divorce, and the other takes her. If both were priests or brothers she is forbidden to the one and to the other. 21. See Mishnah Kethuboth 5.5: These are works which the wife performs for her husband: she grinds (flour), and bakes, and washes (clothes)

and

cooks

bey and works

and

gives

in wool...

suck

to her child,

and

makes

See also ibid., 5.9, 6.1, Tosephta

22. The eating of heave-offerings was the members of their family and their slaves.

privilege

ready

his

Kethuboth

of priests,

the

DISPOSITIONS

IN

CONTEMPLATION

OF

DEATH

255

Expressions stressing the immediate effect of gifts meta why ra ÀEUTÉV

occur in Greco-Egyptian

documents

tine period. See P. Groningen 10:

of the Byzan-

MHOKYOHLL... ÜTOTÉA REV. .

era Bévarév mou ‘forwith ... to belong... after my death’. These may perhaps reflect Jewish influence, but one cannot be certain about it, since the addition of some expression making it clear that ownership was to pass immediately may well have been an independent development. II.

In life and in death.

The expression behayyim uvemaweth — ‘in life and in death’ is quoted in Babylonian Talmud Baba Bathra 153a. Rabh and Samuel, the two leading Babylonian Amoraim of the first half of the 3rd century, differ as to its import: There was a certain (deed of) gift, in which it was written, ‘in life and in death’.

Rabh

said, this has the force

of a mattenath shekhiv mera‘, and Samuel said, this has the force of a mattenath bari’. Rabh said, this has the force of a mattenath shekhiv mera’: since there was a written in it ‘in death’ — ‘after death’ he has said to him, and as to the expression ‘in life’, this was a mere omen of life. And Samuel said, this has the force of a mattenath bari’: since there was written in it ‘in life’ — ‘while he was alive’ he has said, and as to the expression ‘and in death’, (this is only) like one saying ‘from now and forever’. For

once

Rabh’s

opinion

prevailed,

and

it was

held

that

behayyim uvemaweth marked the document as being a mattenath shekhiv mera‘. Rabha, a disciple of R. Nahman,

who was

a follower of Samuel, tried to distinguish between

behayyim

—

‘in life’, and mehayyim

—

‘from life’. He held that if the

latter expression was used, the gift was a mattenath bar, but his opinion was not followed. Rabh’s opinion on the matter was certainly a convenient one: it freed the donor from the obligation he had undertaken, quite possibly without being aware of the consequences of the formula employed. But from a historical point of view, Samuel’s opinion, denying the formula’s connection with mattenath shekhiv mera‘ (and indeed with any kind of disposition in contemplation of death, since mattenath barÿ seems here to be used in a wide sense), seems

to be the correct one.

256

R. YARON

The phrase apparently goes back to Biblical times. It occurs already in David’s lament for Saul and Jonathan (II Sam. 1.23). There the Massoretes and all the ancient versions read, '. . . beloved and pleasant in their life, and in their death they did not part’. But modern scholars have already recognized that behayyehem uvemotham belong together, even though they were not aware of the legal background of the phrase *. This can now be regarded as proven by the occurrence of the phrase in the Aramaic papyri from Elephantine. There we find it in two documents, A.P. 8 and P. Brooklyn 10%‘. The former is a conveyance of a plot for a house’, from father to daughter. That this is a simple gift, and not a disposition in contemplation of death, is made abundantly clear by A.P.9, dealing with the rights of the husband in the property settled on his wife, the donor’s daughter. What is meant by the phrase behayyay uvemothi is that the land was given not only for the donor’s lifetime, but also for the time after his death. The purpose is to safeguard the donee (and indirectly the husband) from any possible claim on the part of her family, after the father’s death. This purpose also finds expression in line 10: ‘There is no other son or daughter of mine,

brother

or

sister,

or

other

woman

or

man

who

has

power over this land, except thou and thy children for ever.’ Similarly P. Brooklyn 10 is also a simple gift. See especially the provisions in line 12f, designed to prevent any claim on the part of other members of the family during the life of the donor and after his death. Griffith * translates a demotic document of the year 284 B.C., which purports to be a sale by a man of all his property to his wife. It contains the following phrase: ‘I belonging to thee while I am alive, I belonging to thee when I am dead’. What23. Smith, 24. of the ted

See, e.g. Nowack, Hand-Kommentar zum Alten Testament, 1901; International Critical Commentary, 1912. Rabinowitz, Jewish Law, p. 202, n. 42 remarks on the similarity phrase in the Aramaic papyri and in the Talmud. This was no-

already

by

J.N.

Epstein,

Jahrbuch

schaft, vol. ‫שק‬‎ )1908(, p. 364, to whom 25.

See

E. Y.

Kutscher,

‘New

der

Aramaic

rican Oriental Society, vol. LXXIV (1954), witz, Studies in Legal History, p. 8. 26.

Catalogue

(1909),

"p.122?

of the

demotic

payri

jüdisch-literarischen

Rabinowitz Texts’,

Journal

p. 235f;

in the John

Gesell-

refers. now

Rylands

of the

also

Ame-

Rabino-

Library

III

DISPOSITIONS

IN

CONTEMPLATION

OF

DHATH

257

ever the true nature of the arrangement expressed by this strange phrase, there is no reason to assume that it was to take effect only at the donor’s death. The formula occurs twice in the Mishnah, not in connection with dispositions in contemplation of death. In each text the purpose is to stress that a certain legal situation is not to be limited to the lifetime of one of those concerned. Mishnah Kethuboth 9.1 concerns a husband who has renounced the fruits of his wife’s property, which would otherwise accrue to him as a consequence of the marriage:

... (If) he wrote to her, ‘I have neither right nor claim to thy goods or to their fruits, or to the fruits of their fruits during thy lifetime and at thy death (behayyayikh uvemothekh)’, he does not eat the fruits during her lifetime and if she dies he does not inherit from her... Mishnah Baba Kamma 9.10 deals with a son who has been interdicted from benefiting by his father’s goods: Whoever says to his son, ‘Konam be any benefit thou hast of mine’, — if he dies, he (the son) shall inherit from him.

(If he said), ‘in his life and in his death’

hayyaw uvemotho), — inherit from him...

(be-

if he dies, he (the son) shall not -

Very similar phrases may be found in two Byzantine documents dealing with the same subject — disownment of child-

ren. The intention is that the disownment

is to remain in.

force beyond the lifetime of the father. P. Cairo Masp. 67097 Zévrog À voi perk Tv êuhv reheurv. P. Cairo verso, 1.58: : neptévroc te | at Ovysxovroc. Masp. 67353: In Roman dead’ occurs

sources a combination ‘alive or dead’ or ‘alive and. several times, but does not seem to have been a.

stereotyped phrase. See, e.g.:

F.V. 229 (Paulus libro singulari de testamentis): . . . itaque post institutionem heredum hoc modo scribere

potest:

nati

‘Lucio Titio filio meo et si mihi vivo mortuove

alii erunt,

CHAUD.

tutores

do

Lucium

Aurelium

et Gaium

. »

D.24.3.22.1 (Ulpianus libro trigesimo tertio ad edictum): Si post solutum matrimonium

voluntatem

exactam

communem

filia familias citra patris dotem

consumat,

patri

et viva ea et mortua actio superest, ut dos ipsi solvatur.

258

R.

YARON

D.28.2.10 (Pomponius libro primo ad Sabinum : Commodissime is qui nondum natus est ita heres instituitur: ‘sive vivo me

sive mortuo

natus

fuerit, heres

esto’,...

D.35.1.91 (Maecianus libro secundo fideicommissorum) : . illa vero ‘si filio meo nubserit’ vel vivente vel mortuo testatore impleri possit . .. D.44.4.4.16

(Ulpianus

libro septuagensimo

sexto

ad edic-

tum): ... namque convenit tam vivo quam mortuo trono a liberto honorem exhiberi . . . D.45.1.10 (Pomponius libro tertio ad Sabinum): iure utimur, ut ex hac stipulatione: ‘si Lucius ante kalendas

Maias

in Italiam

non

venerit,

pa-

0 Titius

decem

dare

spondes?’ non ante peti quicquam possit, quam exploratum sit ante eam diem in Italiam venire Titium non posse neque venisse, sive vivo sive mortuo id acciderit. C.6.30.18.2 (Impp. Theodosius et Valentinianus AA. ad Senatum): Parente vero non subsistente, si quidem post eius obitum tutor infanti sit vel datus fuerit, posse eum etiam adhuc infante pupillo constituto nomine eius adire hereditatem sive vivo parente sive post morten eius ad eum

devolutam

...

(426 A.D.)

We need not go into the details of these texts. In all the cases the death of a certain person is not to affect a certain legal position. This is the purpose of the phrase ‘alive and dead’ in the Roman texts, just as it is the purpose of ‘in life and in death’ in the Aramaic papyri, in the Mishnah and in the Byzantine documents. Its occurrence, in Amoraic times, in dispositions in contemplation of death is an isolated instance. A similar phrase, zai 00% nai Saveov, occurs in some early Greco-Italian inscriptions, which deal with gifts of all or some of the donor’s property”. There are differences of opinion as to the time when the gift is to take effect. Maroi holds that these are gifts with immediate effect: Se

pur quindi qualche indizio si potesse derivare deltermino

— Sxvév

per sostenere che la disposizione patrimoniale sia condizi onata all’ evento della morte, questo indizio sarebbe in contrasto col

termine 27. mae

28.

xai

ode

Arangio-Ruiz Italiae

ad

ius

della stessa clausola *. Arangio-Ruiz and

et

Olivieri,

pertinentes,

Rivista di Roma,

vol. XX

Inscriptiones 1925,

no.

18

graecae and

(1916), p. 254.

20.

Siciliae

et

infi-

DISPOSITIONS

IN CONTEMPLATION

OF

DEATH

259

Olivieri think that the gift takes effect only after the donor's death: ... probabilius nobis videtur bona de quibus agitur post mortem tantummodo donatorum ad eos perventura esse, quibus donata fuerint ... **. And in a footnote, on the same page: Quod Fulvio Maroi... placuit, res . .. non mortis causa, sed statim donatas esse, cum verbis xa Code xat Davov nostra sententia convenire non potest. A modern counterpart to the dispute between Rabh and Samuel. In view of the material which we have discussed there can be little doubt that the opinion of Samuel and Maroi is the one to be preferred.

29,

Op. cit., p. 143.

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