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Rules for Courts: The Role of Lawyers, Judges, Professors and Government*
Published online by Cambridge University Press: 12 February 2016
Extract
This discussion covers some methods and institutions for changing procedures in the courts. More particularly, I refer to procedures for conducting litigations in courts of general jurisdiction, that is to say, civil procedure, criminal procedure and evidence.
Since criminal procedure and evidence are controlled here by statutes, I realize that when the terms “rules” or “regulations” are used you would normally think only of civil procedure. I use the term “rules” in a broader sense since in federal courts in the United States, most procedure governing civil and criminal trials and appeals, including evidence, stems from rules promulgated by the Supreme Court of the United States, subject to modification by Congress.
I shall describe briefly the history and present situation in the United States, making some reference to the British method, touch on the Israeli method, and then draw some general conclusions, raising some questions about the Israeli pattern as I understand it. These countries are comparable since each has a strong, independent judiciary and a tradition of freedom and the rule of law.
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1978
References
1 The literature is collected in Weinstein, J.B., Reform of Court Rule Making (1977)Google Scholar (dealing with British and American history and practice) and in Weinstein, , “Revision of Federal Rulemaking Process” (1976) 76 Colum. L. R. 905CrossRefGoogle Scholar (emphasizing the American federal practice); Clinton, , “Rule 9 of the Federal Habeas Corpus Rules: A Case Study on the Need for Reform of the Rules Enabling Acts” (1977) 63 Iowa L.R. 15, 51 ff.Google Scholar In view of the extensive discussion in these writings, further references to American and British literature is not incorporated in this discussion.
2 See, e.g., Weinstein, , “Independence of the Israeli Judiciary” (1977) N.Y.L.J.Google Scholar; Shetreet, S., Judges on Trial. A Study of the Appointment and Accountability of the English Judiciary (1976).Google Scholar
3 See generally for a history of the revision of New York Practice, Weinstein, J.B., Korn, H. & Miller, A., New York Practice (1st. ed., 1963)Google Scholar Preface.
4 See generally for a history of the adoption of the Federal Rules of Evidence, Weinstein, J.B. and Berger, M.A., in Weinstein's, Evidence (1st ed., 1975)Google Scholar Preface and throughout various volumes. The author was a member of the Advisory Committee appointed by Chief Justice Warren to draft these rules and was reappointed by Chief Justice Burger to continue the work.
5 See, e.g., Cross, , “An Attempt to Update the Law of Evidence — the 11th Report of the English Criminal Law Revision Committee” (1974) 9 Is.L.R. 1Google Scholar; Maguire, J.M., Weinstein, J.B., Chadbourn, J.H. & Mansfeld, J.H., Cases and Materials in Evidence (6th ed., 1973) 808–813.Google Scholar
6 See for a more extensive discussion of the English Practice, Weinstein, J.B., Reform of Court Rulemaking Procedures (1977) 22–33.Google Scholar
7 The Indian Evidence Code of this period resulted from this same early ferment; the Code was from time to time relied upon in the United States. See, e.g., Blackmore, II, “The Ohio Evidence Rules: 105 Years of Heritage and Dilemma” (1977) 6 Capitol L. R. 533, 534–35.Google Scholar
8 A private body of judges, lawyers and professors supported by dues, extensive publications and fees for post-graduate educational activities.
9 See references, supra n. 1.
10 See Note on “State Adaptations of Federal Rules of Evidence” (and note at end of discussion of each Rule) in Weinstein, J.B. & Berger, M.A., Weinstein's Evidence (Supp. Dec. 1977).Google Scholar
11 See e.g., Law Reform Commission of Canada, Report of Evidence (1970)Google Scholar (twelve separate pamphlets containing special studies on particular problems were issued between 1972 and 1975); Ontario Law Reform Commission, Report on the Law of Evidence (1976)Google Scholar; Law Reform Commission New South Wales, Working Paper on the Rule Against Hearsay (1976)Google Scholar.
12 The present practice traces directly to the Mandate situation. Rules for the courts were made by the Chief Justice of Palestine with the consent of the High Commissioner. See sec. 20 of the Courts Ordinance of 1940. Obviously the present institutions are so different that this system could not be carried over bodily, but it does suggest why the Supreme Court's practical influence on rulemaking remains strong though its theoretical control is nil.
13 See, e.g., The Israeli Criminal Procedure Law (1965) with an introduction by U. Yadin, pub. in 1967 as part of the Series of Foreign Penal Codes by N.Y.U. Comparative Criminal Law Project, O.W. Mueller, gen. ed.; Harnon, E., “Criminal Procedure in Israel — Some Comparative Aspects” (1967) 115 U. Pa. L.R. 1091CrossRefGoogle Scholar; Criminal Procedure Law 1965, as amended, (19 L.S.I. 158 ff.).
14 Evidence Ordinance (Amendment No. 3) Bill (1974) H.H. No. 5734, p. 90.
15 The draft laws are printed on blue paper, another vestige of the Mandate. Snyder, E. M., “Guide to Israel Legal Bibliography: Primary Services” (1977) 70 Library Journal Am. Assoc. of Law Libraries 14, 15.Google Scholar
16 But cf. expansion of common law rights to discovery in absence of a statute in Tzinder v. Head of Police Investment Dep., (1949–52) 10 P.E. 236, discussed in Harnon, op. cit. supra n. 13, at pp. 1102–1103.
17 See e.g., Harnon, E., “Evidence Excluded by State Interest” (1968) 3 Is.L.R. 387Google Scholar; Shetreet, S., “Reflections on the Protection of the Rights of the Individual: Form and Substance” (1977) 12 Is.L.R. 32.CrossRefGoogle Scholar
18 For the diverse sources see, e.g., Ginossar, S., “Israel Law: Components and Trends” (1966) 3 Is.L.R. 380Google Scholar; Friedmann, Daniel, “The Effect of Foreign Law on the Law of Israel” (1975) 10 Is.L.R. 329 ff.Google Scholar
19 Courts Law, 1957 sec. 46 (11 L.S.I. 157)Google Scholar; Freudenheim, Y., Government in Israel (1967) 197–98Google Scholar; Civil Procedure Rules, 1963 promulgated by the Minister of Justice are briefly described in F.R. Lacy, “Civilizing Non-jury Trials” (1965) 19 Vand. L.R. 73. But cf. the Labour Courts Law, giving power to those courts to adopt their own rules. They have done this “to simplify the proceedings, eliminate as many formalities as possible, and make the rules under standable to the general public”. Adler, S.V. “The Israel Labor Courts” (1977) Labor Law Journal 13, 17.Google Scholar
20 There are also special committees such as one headed by a District Court Judge considering reform of the law dealing with execution of judgments and Professor E. Harnon was chairman of a special Committee on Contempt of Court.
21 Suggesting the possibility of this shift in view of the lack of jury and the training of some Israeli lawyers in continental practice, see F.R. Lacy, op. cit. supra n. 19. Cf. Ginossar, S., A Program to Improve Dispute Resolution (1974) (mimeo.).Google Scholar
22 The argument that the court could, by mandamus, compel the Minister of Justice to adopt a rule the court thought critical, seems far-fetched. But cf. Oppenheimer v. Ministers of Interior and Health (1966) (I) 20 P.D. 309. For extracts from the judgment, in English translation, followed by Comments see (1966) 1 Is.L.R. 462. Failure to exercise rulemaking power to abate nuisances was a neglect of statutory duty without justification. This is discussed in Zemach, , Political Questions in the Courts [of Israel and the United States] (Jerusalem, 1976) 107 ff.Google Scholar
23 Evidence Ordinance (New Version) 1971 (N.V. 2) L.S.I. 198Google Scholar. Much of the evidence law is in other statutory provisions. See, e.g., Criminal Procedure Law, 1965, sec. 146 (severe restrictions on cross-examination of defendant as to prior convictions), sec. 153 (exclusion of witnesses), secs. 155–157 (examination of witnesses).
24 A small committee within the Attorney General's office is doing the work. In addition to the English, American, Canadian, and Australian models, the Israelis had a draft prepared especially for it at Harvard in the 1950's after extensive debate in the American legal community. Since I participated in some of the discussions, I am aware of how seriously we took the enterprise. Critical work by the Israeli law faculties has been excellent, but, on the whole, sparse. See, e.g., Enker, , “Self-Incrimination in Jewish Law” (1973) Linei Israel 107Google Scholar; Friedmann, D., “The Effect of Foreign Law on the Law of Israel” (1975) 10 Is.L.R.Google Scholar; Ginossar, S., “The Use of Criminal Judgments as Evidence in Civil Cases” (1975) 10 Is.L.R. 242Google Scholar; Harnon, E., “The Right of Silence in Israel” Israel Reports to the Ninth International Congress of Comparative Law (1974) 143Google Scholar; id. “The Need for Corroboration of Accomplice Testimony” (1971) 6 Is.L.R. 81; Libai, D., “Twenty-Five Years of Criminal Procedure in Israel” (1975) 10 Is.L.R. 225Google Scholar; Livneh, E. “The Law of Evidence (Amendment) Law, 1968” (1970) 5 Is.L.R. 168Google Scholar; Shetreet, S., “Reflections on the Protection of the Rights of the Individual: Form and Substance” (1977) 12 Is.L.R. 32.CrossRefGoogle Scholar
25 Cf. the changes in curriculum and teaching techniques designed to produce a more critical bar described in Weinstein, , “An Assessment of Law Schools in Israel” (July, 1977) N.Y.L.J. 1.Google Scholar
26 For a further discussion of the various United States institutions dealing with reform, see also Erickson, William H., “The Pound Conference Recommendations: A Blueprint for the Justice System in the Twenty First Century” 76 Federal Rules Decisions (1977) 277.Google Scholar
27 See Frankel, , “The Search for Truth: An Umpireal View” (1975) 123 U. of Pa.L.R. 1031.CrossRefGoogle ScholarCf. Freedman, “Judge Frankel's Search for Truth” ibid., at 1060; Uviller, “The Advocate, The Truth, and Judicial Hackles: A Reaction to Judge Frankel's Idea” ibid., at 1067; Damaška, “Presentation of Evidence and Factfinding Precision” ibid., at 1083.