LA CODIFICAZIONE CIVILE NEGLI ORDINAMENTI GIURIDICI MISTI. STILE E CONTENUTO DEL CODICE CIVILE ISRAELIANO IN UNA PROSPETTIVA COMPARATA

It is commonly accepted today that Israel is a mixed jurisdiction. It has been shaped by influences from the English (and US-American) common law and from the civilian tradition prevailing in Europe. But it does not conform to the usual pattern as we find it in other countries like South Africa, Québec, Louisiana etc. and all the scholars consider it as, at least an atypical. For one thing, some aspects of family affairs remain governed by religious law and the legal language does not correspond with either of its primary historic sources. For another, we do not have here an originally civilian jurisdiction that is subsequently transformed, gradually, by being exposed to common law influence. For when the State of Israel was founded, in 1948, it was already a mixed system according to the general rule, with a prevalence of common law in public and private law. Since then, it has moved toward civilian world, in the private law area. One of the chief characteristics of a modern civilian world. One of the chief characteristics of a modern civilian legal system in a codification of private law. Israel is now contemplating the introduction of a Civil Code. The drafting of the Israeli Civil Law Code is perhaps the most ambitious legal project—certainly in the area of civil law—undertaken by Israel since the establishment of the state. This Thesis highlights various aspects of the Draft Israeli Civil Code, demonstrating the manner in which a mixed legal culture undergoes the process of codification and paying particular attention to the relationship between codification and actual legal system, legal thinking, scholarship and judicial discretion. The thesis is divided in four parts. In Section one it analyze Israel as an atypical and particular mixed legal system and the relation between common law, civil law and Hebrew law (Halachà) with a brief survey about the relationship between types of sources and style of legal thought. In the second part I try to explain the evolution of the codification process in Israel and what sort of Civil Code Israel envisions. The Israeli Civil Code could be defined as a process of codification in a so-called mixed jurisdiction, taking into account the particularities inherent in the Israeli legal system. Analysis of a code in a legal system requires asking some fundamental questions, such as the value and scope of certainty as a guide for the legal system or to what length should the quest for coherence go in guiding the legislator. This section notes that criticism waged against codification is, by and large, a matter of misunderstanding the purpose of today’s codification efforts. I also analyze what are the fears of jurisprudence, scholars and lawyer about this Code and what will be the impact of the codification on the recent society. Chapter three explains the principles and guidelines of the Draft and compares it with the law currently in force in Israel and around the world. The chapter is divided according to the division of the Draft (general principles, legal acts, obligations, property) and briefly notes the principal features of the Israeli Code in these areas this chapter will allow the reader to gain a wider perspective and to understand more specifically the ideas embodied in it. In Chapter four I analyze what is outside of the code, with particular remark about the matter of personal status that in Israeli law system are still ruled by Religious principles.