Legal Engineering in Israeli Law: Unification and Codification of the Law of Remedies
64 Publications of the Swiss Institute of Comparative Law 69-85
17 Pages Posted: 1 Dec 2008 Last revised: 7 Jun 2019
Date Written: 2009
Legal engineering is the process of designing, constructing and finally implementing means to influence the development of a legal system. In Israel, a relatively young legal system, the concepts of legal engineering and comparative law are deeply interconnected. This interconnection is best reflected in the area of private law. The development of this area of the law, almost since the very inception of the State of Israel, has been characterized by a careful and attentive examination of foreign legal regimes, national and supra-national alike. This was done with the explicit intention of benefiting from the wisdom and experience of older, but nevertheless modernized systems of law, before establishing original statutory arrangements. It seems no exaggeration to suggest that comparative legal thinking and research has been one of the most important factors responsible for the relatively smooth and successful transformation of Israeli private law, during the last 45 years, from a static, outdated and dependent collection of rules into an independent, sophisticated and dynamic legal system.
The field of remedies is an interesting example of legal engineering for a variety of reasons. First, due to its direct practical effects on litigation, the law of remedies is an area of law where changes in the formal legal infrastructure usually have an immediate effect on the operation of the legal system, and on the level of actual protection given individual rights.
Second, the subject of remedies is a fascinating and fertile field of research for the legal comparatist. This is so, due to the very distinct treatment of the subject by systems of the Common Law on the one hand, and Civilian systems on the other. Interesting in itself from a comparative perspective, acquaintance with this divergence of approaches is very helpful when attempting to comprehend - and appreciate - the structure and basic features of the Israeli law of civil remedies. It is also a vivid example of the interesting ways in which the use of comparative law may inspire legal engineering in national systems.
Finally, the law of remedies is today one of the few areas in which the forthcoming Reform of Israeli civil law is expected to bring about significant changes. The Israeli Draft Civil Code was promulgated in 2006 and is today awaiting parliamentary approval. The Draft contains a broad section dedicated exclusively to the treatment of civil remedies. The explicit intention of this particular section is to unify and harmonize, to the extent possible, the rules and principles governing the main remedies available at law for the violation of any kind of private right, regardless of its formal classification.
Part II presents a short overview of the approaches to the idea of "a law of remedies" in both the Common Law and the Civil Law. This introduction will be helpful in establishing my argument, that the Israeli law of remedies - both in its content and form - represents an interesting combination of foreign ideas and experiences.
Part III describes the current state of the law of remedies in Israel. I start by drawing a general picture of the development of Israeli private law. I will propose that original legislation in the fields of private law has been guided by five general "legal engineering principles" or policies. These policies may be viewed as part of an Israeli "theory of legislation", and were clearly applied in designing the "Remedies Statute", an original statute that was enacted in 1970 and governs to date the award of remedies for breach of contract.
Part IV discusses the recent attempts to codify and unify the whole Israeli law of remedies. The main features of this reform, I suggest, constitute a clear example of legal engineering, along the lines of the Israeli theory of legislation laid down above. In my view this innovative project demonstrates how even in the 21st century legislation in the fields of core private law may still be required in order to facilitate the access to law as well as its just and effective administration.
Keywords: remedies, comparative law, legal engineering
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