¹ Michael, and Wechsler, , Criminal Law and Its Administration (1940) 1284.Google Scholar

² E.g., section 214(c), Jacobovitz v. Attorney General (1952) 6 P.D. 514, 554.

³ E.g., section 161(b), G'mal v. Attorney General (1959) 13 P.D. 692.

⁴ E.g., section 14, Mandelbrot v. Attorney General (1956) 10 P.D. 281 (also 2 S.J. 116).

⁵ Abu Ravia v. Attorney General (1963) 17 P.D. 2913, 2926 (per Agranat J.). The translations of material from Israeli judicial opinions and other Hebrew sources are the author's.

⁶ Jacobovitz v. Attorney General (1952) 6 P.D. 514 (per Silberg J.).

⁷ Malchi, , History of the Law of Palestine (1953) 132.Google Scholar

⁸ No attempt will be made here to present a detailed history of the drafting of the CCO and the origins of its specific provisions. Throughout this article, references to the CCO refer to the Code as originally promulgated. There have, of course, been numerous amendments of the original language—both by the mandatory authorities and the Knesset.

⁹ Palestine Penal Code (Govt. of Palestine, C.S.O.) Vols. I–III, File No. J/64/31, Government Archives. See also Criticisms and Suggestions Re the Criminal Code Bill, File No. J/284/33. Compare with the historical review in the text, Morris, H. F., “How Nigeria Got Its Criminal Code” (1970) J.A.L. 135.Google Scholar

¹⁰ File No. J/64/31, Vol. I, p. 1–2.

¹¹ Ibid., p. 6.

¹² Ibid., p. 20.

¹³ Ibid., p. 166a.

¹⁴ Palestine Gaz. Extraord. No. 367, June 6, 1933.

¹⁵ Palestine Gaz. Extraord. No. 652, Dec. 14, 1936.

¹⁶ File No. J/64/31, Vol. I p. 166a. A minute note in the file indicates that 25 stencilled copies of the Explanatory Note were prepared in February, 1932. It also reveals that the Colonial Office wanted to be informed of any departures from the Cyprus Code and suggested that the changes be indicated in italics. Because the draft was typed on a typewriter that could not reproduce italics the Explanatory Note was prepared.

¹⁷ Ibid.

¹⁸ The major exception involves the homicide provisions, the history of which present an interesting sidelight on the development of the Code. In 1929, the Attorney General and the Chief Justice of the Palestine Supreme Court engaged in a spirited exchange of memoranda regarding the desirability of enacting provisions reflecting the English law of homicide. The Attorney General wrote, “[I]t would, in my opinion, do unnecessary violence to public opinion to introduce the English conception which treats wilful homicide as a capital offence in every case unless the accused person can establish it was manslaughter”. File No. J/64/31, Vol. I, p. 32. In March, 1930 the Colonial Secretary's Office resolved the dispute by deciding that the new code should incorporate the provisions of English law as set out in the Cyprus Code, but avoid the use of the phrase “malice aforethought”. Ibid., p. 45.

Somewhat mysteriously, however, in May, 1934, the proposed murder provisions were changed back so as to reflect as much as possible the then-existing law in Palestine. The portents of the change were very few. The Howard League for Penal Reform had written a letter criticizing the Cyprus provisions as had one Arab lawyer. There was also an indication that Sir Herbert Samuel was going to raise a question about the murder provisions in Parliament. On May 21, 1934, the High Commissioner received a letter from the Secretary of State indicating that the question was going to be asked on May 30th, and on May 22nd the Commissioner wrote a reply indicating that the definition of murder had been amended.

Although miffed because he had not been consulted about the change, the Chief Justice subsequently conceded that five additional years involvement in the administration of criminal justice in Palestine had changed his mind about the expediency of introducing the English law of murder. File No. J/284/33, Vol. I, pp. 28, 31A, 36A, 57a, 62, 68, 80.

¹⁹ Cyprus Gaz. Extraord. No. 1947, October 17, 1928.

²⁰ The Explanatory Note indicates that Article 14 of the East Africa Code was followed in preference to the Cyprus intoxication provision.

²¹ Section 262, CCO.

²² Chapter XXI, CCO.

²³ Chapter XL, CCO.

²⁴ See supra n. 18.

²⁵ Seidman, , A Sourcebook of the Criminal Law of Africa (1966) 325.Google Scholar Compare Malchi, , History of the Law of Palestine 132Google Scholar: “One of the latest of these [laws] was the criminal law of the Sudan of 1924. On the foundation of this law is built the Criminal Code of …Cyprus”. See also Hedges, , Introduction to the Criminal Law of Nigeria (1962) 4Google Scholar: Okonkwo, and Naish, , Criminal Law in Nigeria (1964) 5Google Scholar: Brett, and Mclean, , Criminal Law and Procedure of Lagos, Eastern Nigeria and Western Nigeria (1963) 433Google Scholar; Williams, , Criminal Law (1961) 583.Google Scholar

²⁶ Criminal Law and lts Administration (1940), 1986. The same source indicates that Sir Samuel also drew upon the New York and Italian Codes.

²⁷ Compare, e.g., Article 217 in the Digest with section 288 in the Queensland Code.

²⁸ Compare: “The received criminal law of all these [African] countries is basically English criminal law. The statutory provisions in any of them closely resemble. those in the others. Yet at present relevant decisions in one are rarely cited in the others because lawyers know English decisions best, their local decisions next best, and those of other African states not at all.” L.C.B. Gower, Foreword to Seidman, , A Sourcebook of the Criminal Law of Africa (1966) vii.Google Scholar

²⁹ See, e.g., Stroll v. Attorney General (1964) (III) 18 P.D. 395, 399 (citing Stephen's Digest as the source of section 219, CCO). Deutsch v. Attorney General (1954) 8 P.D. 456, 464 (citing Stephen's Digest as the source of section 217, CCO). Ibid., at p. 471 (citing a case arising out of Africa, Dabholkar v. The King [1948] A.C. 221 involving interpretation of a provision identical to section 243, CCO). Dahan v. State of Israel (1969) (I) 23 P.D. 197, 226 (citing the Cyprus and Indian Penal Codes). See also Jacobovitz v. Attorney General (1952) 6 P.D. 514, 554. (citing the Ottoman and French Codes as the source of section 214, CCO).

³⁰ E.g., Feller, , “The Mens Rea of Crime and the Requirement of Voluntariness According to Israeli Law” (1967) 23 HaPraklit 308, 315Google Scholar (calling attention to the fact that section 11, CCO is identical to section 23 of the Queensland Code); Bein, , “Self-Help in Obtaining Possession of Property” (1968) 24 HaPraklit 475, 478Google Scholar (referring to the similarity between Queensland, Cyprus, Nigeria, Western Australia and Israel code provisions); Bein, , “Mistake of Law, Mistake of Fact and Claim of Right” (1965) 22 HaPraklit 152, 157Google Scholar (noting that the mandatory code was influenced by Stephen's Digest); Polonski, , “Section 218 of the Criminal Code” (1955) 12 HaPraklit 119Google Scholar (tracing section 218 CCO to the Ottoman and Indian Penal Codes). See also Tedeschi, and Rosenthal, , Pekudat Nezikin, 8Google Scholar (noting the fact that section 2 (1) of the Civil Wrongs Ordinance “is similar to section 4, Cyprus Criminal Code Order-in-Council” without, however, calling attention expressly to its similarity to section 4, CCO).

³¹ The lost file was “rediscovered” in the Archives while cross-checking various card indices for materials relevant to the drafting of the CCO.

³² See, e.g., the reference in Tedeschi and Rosenthal, Pekudat Nezikin cited supra n. 30. See also Malchi, , “On a New Criminal Code” (1950) 7 HaPraklit 352, 353Google Scholar; Malchi, op. cit., supra n. 7.

³³ The Cyprus Law Reports through 1964, including both civil and criminal cases, occupy 28 thin volumes.

³⁴ See material quoted from Seidman, supra n. 28.

³⁵ In connection with the drafting of the CCO, the Chief Justice did obtain a copy of the Cyprus Code directly from Cyprus, but thereafter all correspondence was with London.

³⁶ Most of the existing descriptions of the origins of the colonial codes were written in 1940 or later. See authorities cited supra nn. 25, 26.

³⁷ Carter's, Criminal Law, Queensland (3rd., 1969)Google Scholar is available.

³⁸ There are available in the Hebrew University Law Faculty's Library a number of sources that might have been expected to lead the researcher down the Queensland trail. The Commonwealth Law Reports contain, inter alia, reports of cases originating in Queensland appealed to the High Court of Australia. The Australian Digest summarizes all Australian cases. Finally there are a number of law journals and texts concerned with Australian case and statutory law.

³⁹ Unless otherwise indicated, “source jurisdiction” as used herein includes any jurisdiction whose criminal code contains language identical to the CCO, whether or not that criminal code pre-or ante-dated the CCO or was not in its direct lineage.

⁴⁰ (1963) 17 P.D. 2913.

⁴¹ The comparable section of the Nigerian Criminal Code (section 233) contains the phrase. The fact, as noted by Justice Agranat that the words “of the” are still found in the section perhaps supports the accidental omission theory. In the preparation of the CCO, numerous typographical omissions initially occurred although most of these were later corrected. At least one such error remains to this day in the official English language version of the Code even though it results in a provision that, read carefully, does not make any sense. Compare section 375, CCO with section 355, Cyprus Criminal Code. See also Gorney-Kidron, , Digest of the Criminal Code (1953) p. LXXIXGoogle Scholar where the authors added a comma to section 375 that helps to make sense out of it. The available Hebrew translations of the Code incorrectly translate the original so as to correct the error.

⁴² E.g., section 240, Cyprus: section 351, Queensland.

⁴³ The section of the Queensland Code most similar to section 253, CCO but clearly not the direct source of that provision is section 352 which does contain a specific clause making mistake as to age immaterial. A possibly relevant but very minor difference between the codes is the fact that the other offences to which the no-knowledge-of-age-is-immaterial section might be applicable in Queensland are found in a chapter titled “Assaults on Females: Abduction”. In Israel and Cyprus, they are located in a chapter called “Offences Against Liberty”. A tenuous argument might be constructed as follows: There may have been concern in Queensland that the no-knowledge provision might be applied to offences found in a chapter so obviously related to the “Offences against Morality” chapter in which the no-knowledge provision was placed. The “defined in this chapter” language protected against this possibility. In the Cyprus and Israel context, the concern was not as great and the language could be safely deleted. The court might also have relied on another argument—the fact that section 178 is not found in the general part (Part I) of the Code and therefore was probably not intended to be applicable as a general rule beyond the chapter in which it is found.

⁴⁴ The Supreme Court of Israel has itself considered arguments based upon inferences drawn from omission of language contained in an earlier version of the same statute. See, e.g., G'mal v. Attorney General (1959) 13 P.D. 692 (per Cheshin, C. J.). See also Tedeschi, et al. , The Law of Torts (Jerusalem, 1969) 54.Google Scholar On ascertainment of legislative intent and use of legislative history materials, consult Yadin, , “Again on Interpretation of the Laws of the Knesset” (1970) 26 HaPraklit 190, 358.Google Scholar

⁴⁵ It must be conceded that the absolute liability issue was only one among many considered and that the argument based on section 178 was only one of several discussed on that issue. It is not realistic to expect the Court to include everything in its opinion. Nevertheless, if the Court had been aware of the Queensland provision, it probably would have mentioned it.

⁴⁶ (1954) 8 P.D. 456 (also 2 S.J. 92).

⁴⁷ The same language is found in section 197 of the Cyprus Code, which is the equivalent of section 212 and 217, CCO combined. The provisions were separated in the CCO in the course of the revision of the Cyprus homicide provision. See supra n. 18. No comparable language appears in the Queensland Code. The expression “unlawful omission” defined by section 217 is also found in section 214(a).

⁴⁸ Deutsch v. Attorney General (1954) 8 P.D. 456, 464.

⁴⁹ Ibid. The Justice was referring to article 291 in the 8th edition which provides: “Everyone who, by the culpable neglect of a duty of care imposed upon him, causes the death of any person, is guilty of the felony called manslaughter…” This section is not restricted to omissions. In the first edition, however, the phrase “culpable neglect” was not used although the learned author did refer to “neglect of duty” in Article 211. In that same article as well as at other points, for example, Article 210 and Note XIII 5, 6, he also used the phrase “culpable negligence”. Chapter XXII is entitled “Of Culpable Negligence and of Duties Tending to the Preservation of Life”. Article 211 is titled, “Death or Bodily Injury Caused by Omission to Discharge a Legal Duty”.

⁵⁰ The commas are also found in the comparable Article 243 in the 6th edition published in 1904.

⁵¹ Obviously they were omitted in the process of editing Stephen's Digest somewhere between the 6th and the 8th editions. We cannot be sure from which edition the draftsman of the Cyprus Code or one of its predecessors copied the section and thus we cannot know for certain whether the commas appeared in the copied edition of Stephen, even if we had available all of the intermediate editions.

⁵² Deutsch v. Attorney General (1954) 8 P.D. 456, 469.

⁵³ See e.g., Jacobovitz v. Attorney General (1952) 6 P.D. 514.

⁵⁴ E.g., Rotenstreich v. Attorney General (1953) 7 P.D. 58 (1 S.J. 202); Shevili v. Attorney General (1952) 6 P.D. 470.

⁵⁵ R. v. Bonnyman [1942] 28 Cr. App. Rep. 131.

⁵⁶ See Jacobovitz v. Attorney General (1952) 6 P.D. 514.

⁵⁷ (1952) 6 P.D. 470.

⁵⁸ (1953) 7 P.D. 58.

⁵⁹ (1952) 6 P.D. 470, 474.

⁶⁰ Ibid. at 475.

⁶¹ (1953) 7 P.D. 58, 79, 84.

⁶² Barak, , “Liability toward Trespassing Children—Progress and Retreat” (1965) 21 HaPraklit 426, 433.Google Scholar Professor Barak was addressing himself to section 2 (1) of the Civil Wrongs Ordinance. For further discussion of the issue see infra, Part III, B. 1. We do not enter here into the merits of the substantive problem involved in Shevili and Rotenstreich. For an excellent treatment, see Barak, supra and his earlier articles on the subject cited therein. See also Barak, , “L'Enfant Terrible of the Law—The Child Trespasser” (1966) 1 Is.L.R. 157.Google Scholar

⁶³ Rayas v. Police (1954) 19 Cyprus L.R. 308. This case was decided about a year after Rotenstreich. The Cyprus Court was apparently unaware of the Israeli decision which was not at the time available in English.

⁶⁴ In dissent in Rotenstreich, Justice Silberg rejected any reliance on English law. One doubts, too, that any argument based upon section 4 would have changed his mind.

⁶⁵ Mandelbrot v. Attorney General (1956) 10 P.D. 281.

⁶⁶ (1957) 11 P.D. 769.

⁶⁷ Section 14, CCO; section 12, Cyprus Criminal Code.

⁶⁸ Probably to insure a different burden of proof for irresistible impulse issues than for ordinary involuntariness claims. See text infra p. 55. A related form of the same argument is that since the Queensland Code contained an express provision dealing with irresistible impulse, those who copied the Code, in omitting it, must have rejected the concept as a type of insanity defence. Again, it may be replied that they may have omitted it on the ground that the same volitional concept was already covered in section 11.

⁶⁹ Although the result was admirable, with the advantage of hindsight I wonder whether the court, as a matter of policy, chose the proper path. The irresistible impulse defence appears to be stingily applied. See, e.g., Barazani v. Attorney General (1959) 13 P.D. 1409; Sandrovitz v. Attorney General (1968) (II) 22 P.D. 286. Meanwhile psychiatric testimony regarding the accused's mental state has generally not been considered in connection with the concept of premeditation. Cf., however, G'ramah v. Attorney General (1963) 17 P.D. 925 and see Kalil v. Attorney General (1950) 4 P.D. 75 where Justice Silberg came close to holding that psychiatric evidence should be considered on the issue of premeditation. Compare also the developments in California where the State Supreme Court first refused to adopt the irresistible impulse test but then proceeded to liberally interpret the homicide statute (including the concept of premeditation) so as to permit psychiatric evidence as a mitigating factor. People v. Wolff 61 Cal. 2d 795, 394 P.2d 959 (1964); People v. Conley 64 Cal. 2d 310, 411 P. 2d 911 (1966).

⁷⁰ Justice Silberg came closest to making the “Queensland” argument when he cited a series of foreign statutes (not including Queensland) that expressly include a mental disease requirement in their irresistible impulse provisions.

⁷¹ Feller, , “The Mens Rea of Crime and the Requirement of Voluntariness According to Israeli Law” (1967) 23 HaPraklit 308.Google Scholar

⁷² (1954) 8 P.D. 785.

⁷³ [1814] 105 E.R. 536.

⁷⁴ [1933] 1 K.B. 529.

⁷⁵ Eshed v. Attorney General (1954) 8 P.D. 785, 823.

⁷⁶ Ginor v. Attorney General (1954) 8 P.D. 833, 838.

⁷⁷ File No. J/64/31, Vol. III, p. 98.

⁷⁸ Ginor v. Attorney General (1954) 8 P.D. 833.

⁷⁹ Attorney General v. Bernstein (1952) 6 P.D. 854.

⁸⁰ E.g., Loveday v. Ayre [1955] St. R. Qd. 264.

⁸¹ E.g., Olsen v. Grain Sorghum Marketing Board [1962] Qd. R. 580.

⁸² E.g., Home v. Coyle [1965] Qd. R. 528.

⁸³ Consult Howard, , “The Reasonableness of Mistake in the Criminal Law” (1961) 4 U. Queensland L.J. 45, 48–50.Google Scholar

⁸⁴ Loveday v. Ayre [1955] St. R. Qd. 264 and authorities cited therein.

⁸⁵ E.g., Olsen v. Grain Sorghum Marketing Board [1962] Qd. R. 580. Cf. Zahavi v. Attorney General (1952) 6 P.D. 437.

⁸⁶ E.g., Pearce v. Paskov [1968] W.A.R. 66 (meaning of offence relating to property in section 10); Antoni v. Loizou of Eptagonia [1961] Cyprus L. Rep. 295 (claim of right as a defence).

⁸⁷ Pano v. Attorney General (1962) 16 P.D. 1105, 1107–1108.

⁸⁸ Justice H. Cohn may be making an effort to keep the issue alive at least in a limited form: “I do not see the need to decide the question whether the burden of proof in this case—where the mental disease has already been proved—falls on the prosecution or the defence.” Sandrovitz v. Attorney General (1968) (II) 22 P.D. 286, 289. Justice Agranat subscribes to the Berinson view. G'ramah v. Attorney General (1963) 17 P.D. 925, 939.

⁸⁹ [1960] Qd. R. 225.

⁹⁰ Ibid.

⁹¹ [1960] Qd. R. 406.

⁹² Attorney General v. Segal (1955) 9 P.D. 393, 418. The treatment in the text in this Part is not intended to deal comprehensively with all the analytical problems raised by section 4 CCO or issues raised by similar sections in other statutes such as sec tion 2 (2) Partnerships Ordinance, section 2 (2) Companies Ordinance, etc. The limited purpose here is to canvass whether section 4 poses any serious obstacle to the use of colonial materials.

⁹³ Israeli courts in construing section 4 have also generally not referred to case law arising out of other jurisdictions interpreting an identical provision. See, e.g., Mawji v. The Queen [1957] A.C. 126. But some attempts have been made to consider the approach of ex-colonies to the problem of relating to English law. Consult Gorney, , “The Binding Force of English Precedents in Israel” (1955) 11 HaPrahlit 322Google Scholar; Kochabi v. Baker (1957) 11 P.D. 225, 239.

⁹⁴ E.g., Rotenstreich v. Attorney General (1953) 7 P.D. 58; Ashval v. Attorney General (1952) 6 P.D. 1116.

⁹⁵ This, of course, is another possible explanation for Justice Cheshin's failure to mention section 4 in Rotenstreich.

⁹⁶ See opinion of Justice Silberg in Rotenstreich and see also Ashval.

⁹⁷ Thus it is particularly surprising that there seems to be a total absence of reference to Queensland authority in Israeli criminal cases.

⁹⁸ See e.g. the American material cited in Deutsch v. Attorney General (1958) 8 P.D. 456, 468. Consult Gorney, , “American Precedent in the Supreme Court of Israel” (1955) 68 Harv. L. Rev. 1194.CrossRefGoogle Scholar

⁹⁹ See supra, n. 29.

¹⁰⁰ (1952) 6 P.D. 514.

¹⁰¹ Ibid. at p. 554–555. Cf. Attorney General v. Segal (1955) 9 P.D. 393, where Justice Goitein in deciding whether to adopt an objective standard for provocation stated: “I do not see anything in the context of our statute that is not consistent with English law, and therefore, I do not see how the statute permits us to interpret it differently from the way it is interpreted in England”. Query, can it not be argued that the CCO's premeditation-provocation construct is quite different from that of the common law?

¹⁰² Ibid., at p. 553.

¹⁰³ Justice Agranat notes a number of differences between section 214, CCO and the English law of felony-murder including the fact that English law limits felony murder to felonies involving violence while section 214 (c) merely requires commission of any offence, and it requires that the homicide be “wilful” while English felony-murder law does not. He does not, however, tell us how much of a difference of approach there must be before Israeli courts are “unbound” from English law. There is a sufficient similarity between section 214 (c) and English felony-murder doctrine that, if the Justice had wanted, he might have found assistance in the English authorities. Compare Tedeschi, , Studies in Israel Law (Jerusalem, 1960) 59Google Scholar: “…;Israeli judges tend to take English precedents into account even where they are not consistent with the text of law adopted by the Palestine legislator…” See also supra, n. 101.

¹⁰⁴ The Queensland Code has been described as being “broadly based on the common law”. Barry, , Paton, and Sawer, , An Introduction to the Criminal Law in Australia (1948) 16.Google Scholar Thus there are likely to be relatively few occasions where the CCO provisions modelled after Queensland adopt an approach not found at all in English law. See also International Lawyers Convention in Israel, 1958 (Jerusalem, 1959) 38 et seq.

¹⁰⁵ (1952) 6 P.D. 514, 554.

¹⁰⁶ Ibid., at p. 557.

¹⁰⁷ Polonski, , “Section 218 of the Criminal Code: A Crime or a Civil Violation” (1955) 12 HaPraklit 119.Google Scholar

¹⁰⁸ In addition to the leeways available through interpretation of the language of section 4, the section itself expressly provides two escape mechanisms. Expressions used in the Code are to be construed with the meaning attaching in English law: 1) “so far as is consistent with their context” and 2) “except as may be otherwise expressly provided”. Though important (see e.g. n. 115 infra), these two clauses are not further discussed herein. They offer little or no basis for referring to source jurisdiction materials since presumably the context or a statutory definition will provide an answer. There still might be a basis for referring to source jurisdiction cases derived from a code having the same definition.

¹⁰⁹ Attorney General v. Segal (1955) 9 P.D. 393.

¹¹⁰ Ibid., at p. 410–411.

¹¹¹ Ibid., at p. 413 (Goitein J.); p. 430 (Berinson J.).

¹¹² Section 2 (1) of the Civil Wrongs Ordinance is almost identical to section 4 of the CCO.

¹¹³ (1962) 16 P.D. 209.

¹¹⁴ Ibid., at p. 221.

¹¹⁵ The first was that there was an express definition of “negligence” in the Civil Wrongs Ordinance and therefore the proviso of section 2 (1) [and section 4] was applicable—viz. “except as may be otherwise expressly provided.” His second response was that the obligation to follow English law only extends to an obligation to extract the principle. See text infra at p. 58.

¹¹⁶ For an excellent detailed review of the authorities on the meaning of “an expression” issue and related matters involving section 2 (1) of the Civil Wrongs Ordinance, consult Tedeschi, et al. , The Law of Torts (Jerusalem, 1969) 66.Google Scholar It would, however, be rather odd for a court to rely very often on the leeways involved in the meaning of “an expression” in order to refer to case law from a source jurisdiction. For the court would then be referring to judicial decisions interpreting identical statutory language in a context where the issue before it was deemed not one involving construction of an expression in the CCO.

¹¹⁷ Attorney General v. Segal (1955) 9 P.D. 393, 411.

¹¹⁸ In Mawji v. The Queen [1957] A.C. 126 the Privy Council in a case arising out of Tanganyika decided to adopt the common law rule that a husband and wife cannot be held for conspiracy. In so doing, the court interpreted a provision like section 4 in the CCO, stating: “It was submitted for the respondent that in applying section 4… substantive law must be distinguished from ‘interpretation’ and ‘meaning.’ It may be difficult to define the limits of section 4. The contrast between substantive law and interpretation does not seem to assist. The most obvious form of interpretation will extend or restrict the application of words and thereby affect the substantive law.”

Compare Gorney, , “May a Husband and Wife be Held for Criminal Conspiracy” (1955) 16 Hok Umishpat 3, 4Google Scholar: “The principle of the common law regarding the ‘unity of personality’ of a husband and wife belongs, according to our view, to the category of questions involving ‘shita ve'emda’, and therefore we are not bound to adopt it through the intake-pipe of section 4.”

¹¹⁹ Compare Feller, , Criminal Law Vol. I, p. 40 (Lectures edited by Gavizon, R., 1969).Google Scholar

¹²⁰ Justice Agranat cites approvingly the Silberg distinction in Mandelbrot v. Attorney General (1956) 10 P.D. 281, 333.

¹²¹ Kochabi v. Baker (1957) 11 P.D. 225 (rendered under section 2 (1) of the Civil Wrongs Ordinance).

¹²² Eshed v. Attorney General (1954) 8 P.D. 785, 798.

¹²³ Jacobovitz v. Attorney General (1952) 6 P.D. 514, 517.

¹²⁴ Compare the interpretations of Kochabi v. Baker presented in Tedeschi, et al. , The Law of Torts (Jerusalem, 1969) 71Google Scholar and Elon, , “The Sources and Nature of Jewish Law and its Application in the State of Israel” Part III (1968) 3 Is.L.R. 416, 451–452.Google Scholar See also Rubinstein, , Constitutional Law (1968) 39Google Scholar: “[T]here is no disagreement that English judgments rendered after the establishment of the State do not have binding force”. There may certainly still be some disagreement on this issue—at least in a section 4 context, though probably today a majority of the justices subscribe to this view.

¹²⁵ (1957) 11 P.D. 225.

¹²⁶ Ibid., at p. 244–245.

¹²⁷ Ibid., at p. 236.

¹²⁸ Justice Cheshin's position in Kochabi is reasonably clear. He relies on Article 46 of the Order-in-Council and section 11 of the Law and Administration Ordinance in concluding that English decisions rendered after 1948 are not binding, but he then treats the issue as it arises under section 2 (1) of the Civil Wrongs Ordinance (or section 4, CCO) quite differently—as arising under a lex specialis.

Justice Witkon's view is quite clear. He relies primarily on section 11. Justice Landau, labelling the issue a matter of dictum, indicates that he sees little difference between the positions of Cheshin and Witkon as to the effect of section 11 and Article 46 and concludes with the following: “Whatever, Israeli courts are not bound to follow English precedents unless they meet the double standard of Article 46 and section 11.” Ibid., at p. 246.

¹²⁹ Consult Gorney, , “The Binding Force of English Precedents in Israel (1955) 11 HaPraklit 322.Google Scholar

¹³⁰ Of course, under the Witkon view, all connection with the English legal system is not terminated. English cases—both pre-and post-state may still have persuasive authority, but they are no longer binding. For a sharp criticism of the Witkon view, see Rubinstein, Constitutional Law (1968) 38: “English precedents thought to be a cornerstone of our legal system would be exposed to renewed criticism and rejection by Israeli courts… It is easy to envisage what damage will be caused to the soundness of the legal order…”

¹³¹ Compare the result reached under the proposed interpretation of “English law” in section 4, infra Part III B (iii).

¹³² Another line of argument developed in some opinions is that section 33 of the Courts Law, 1957 which provides that the Supreme Court is not bound by its own precedents also has the effect of freeing the court from the requirement of following English law. See State of Israel v. Giter (1963) 17 P.D. 2073, 2077 (per Berinson J.); American Cyanamid Co. v. Lepetit S.p. A. (1962) 16 P.D. 788, 799 (per Cohn, J.). The view is criticized in Rubinstein, , Constitutional Law (1968) 38, n. 62.Google Scholar Consult generally Witkon, , “Some Reflections on Judicial Law-making” (1967) 2 Is.L.R. 479.Google Scholar

Putting together the section 4 requirement to follow English law with the fact that the Supreme Court is not bound by its own precedents leads to some interesting results. Suppose an issue of interpretation of an expression in the CCO arises, and the Supreme Court relies on a prior English case. Later the same issue comes up again. May the Supreme Court reject its own precedent? If it does, is it required once again to refer to English law? Is it, in effect, bound to follow English law only once? What is the bearing of the rule that once Israeli courts have passed on an issue in reliance on English precedent, they are not bound to follow later changes in the English doctrine?

The fact remains that it is very doubtful that this Courts Law provision was drafted with the thought of repealing section 4. To so construe it is very much like reading such a far-reaching result into section 11 of the Law and Administration Ordinance.

¹³³ Attorney General v. Segal (1955) 9 P.D. 393.

¹³⁴ (1958) 12 P.D. 421.

¹³⁵ State of Israel v. Chutai (1962) 16 P.D. 209.

¹³⁶ Attorney General v. Segal (1955) 9 P.D. 393, 432–433.

¹³⁷ Stern v. Shamit (1958) 12 P.D. 421, 427.

¹³⁸ For a similar view, see Tedeschi, et al. , The Law of Torts (Jerusalem, 1969) 63Google Scholar: “Therefore the difference between principle and application is nothing more than a matter of degree… We suggest for this purpose that the principle must be determined at the most abstract level of the English precedent, or the lowest possible common denominator, to permit the court the greatest room to maoeuvre.”

Although the distinction between principle and specific application may assist the court in avoiding the binding effect of English law, its use will not normally leave the court very free to rely on source jurisdiction cases since the primary ground for invoking the distinction is that local conditions require a specifically Israeli application.

¹³⁹ It might be argued that in construing the phrase the courts should use the definition of “law” found in section 5, CCO. But the court has not always followed that definition. See, for example, Vineberg v. Attorney General (1965) (I) 19 P.D. 150. The court is not bound by the meaning given to the phrase “English Law” in decisions of English courts, at least not by force of section 4 itself, since that would involve a bootstrapping process.

¹⁴⁰ Israeli courts and scholars have specifically mentioned the House of Lords in discussing the meaning of “English law” in section 4. See e.g., Attorney General v. Zlotolou (1955) 3 P.M. 204 (per Landau J.); Gorney, , “The Binding Force of English Precedents in Israel” (1955) 11 HaPraklit 322, 339.Google Scholar See also text at note 92, supra.

¹⁴¹ “The Judicial Committee of the Privy Council… sits as the final court of appeal from a still considerable number of colonies, dependencies and independent members of the Commonwealth”. Maher, et al. , Cases and Materials on the Legal Process (1966) 42.Google Scholar

¹⁴² Professor Tedeschi has suggested that decisions of the Privy Council are not binding on Israeli courts since it is not an “English tribunal”. Tedeschi, , Studies in Israel Law 41.Google ScholarCf., however, Attorney General v. Segal (1955) 9 P.D. 393, where Justice Silberg described an opinion of the Privy Council as an “English decision”. And see Dahan v. State of Israel (1969) (I) 23 P.D. 197, 226, where Agranat J. refers to “lands outside of England in which English law left its mark…”

¹⁴³ Professor Tedeschi has also suggested that Israeli courts are not bound by precedents from the dominions and British territories since they, too, are not “English” Ibid. Consider, e.g., the status of Australian decisions in light of the following: “Decisions of English courts pronounced since 1828 are decisions pronounced by courts outside the Australian hierarchy and are, in strict view, only of persuasive authority. But this last proposition must be carefully qualified. On several occasions the Privy Council and judges of the High Court of Australia have stated that the High Court and all subordinate Australian courts should follow decisions of the House of Lords…” Maher, et al. , Cases and Materials on the Legal Process (1966) 44–45Google Scholar, and see authorities cited therein. See also infra n. 144.

¹⁴⁴ In the well-known case of Parker v. Queen [1963] (III) C.L.R. 610, Sir Owen Dixon C.J. in dissent on behalf of all members of the High Court of Australia stated that his court would not follow the House of Lords decision in Director of Public Prosecutions v. Smith. Consult Goodhart, “The High Court of Australia and the House of Lords” [1963] L.Q.R. 313.

¹⁴⁵ Limiting the concept of English law to decisions of courts purporting specifically to follow English law is, in theory, an attractive approach. It might, however, put a heavy burden on the Israeli courts if in each case the Israeli court were to determine whether the foreign decision involved in fact comported with English law. That inquiry would add a whole dimension of undesirable complexity to the section 4 problem and would defeat the purpose of broadening the concept of English law so as to make it a more flexible vehicle for bringing foreign decisions to bear on Israeli statutory construction issues. The problems of determining what is English law are reminiscent of those encountered by Federal courts in the United States in applying the doctrine of Erie R.R. v. Tompkins 304 U.S. 64, 58 S. Ct. 817 (1938).

¹⁴⁶ Compare the issue raised in the recently litigated Scott extradition case. Does the phrase “laws of the requesting party”—i.e. laws of the United States, since it was the contracting and requesting party under the U.S.-Israel Extradition Treaty (1963) K.A. 505, p. 795—include the laws of individual states in the U.S.? In the context of such a treaty, it may be reasonable to interpret this phrase to include the penal laws of the several states. But such an interpretation runs counter to the meaning usually given to the phrase “laws of the United States” in U.S. law where it normally refers only to Federal law. A phrase normally given a single-entity meaning may, in an appropriate context, be construed in a multi-entity sense.

¹⁴⁷ Had he wanted to reduce the possibility of such an interpretation, the mandatory legislator might have used a more limiting phrase such as “the law obtaining in England”. Compare the first clause of section 4: “This Code shall be interpreted in accordance with the principles of legal interpretation obtaining in England…”

¹⁴⁸ A draft New Version of the Code (No. 27, Jan. 23, 1971) would make section 4 inapplicable to Part II of the code. A draft amendment has also been prepared that would delete section 4 entirely. Also, of course, as noted earlier many new criminal provisions have been enacted by the Knesset over the years. Finally committee work on the General Part of a new code is proceeding rapidly.

¹⁴⁹ Compare: “In discussing the Nigerian Criminal Code…, we shall refer to cases from some of these jurisdictions, most especially… Queensland.” Okonkwo, and Naish, , Criminal Law in Nigeria (1964) 5.Google Scholar

¹⁵⁰ Okonkwo and Naish, op. cit. supra n. 149, do refer to the Israeli Criminal Code, e.g., at p. 5 n. 2 and cite the Mandelbrot and Deutsch cases, at pp. 129, 130, 138 and 63 relying on the translations of the opinions available in Selected Judgments of the Supreme Court of Israel. Regrettably they were not able to make more extensive use of Israeli materials since “not many reports have been accessible…” Ibid. p.vi.