Israel as a Mixed Jurisdiction

This article challenges common understandings about the distinct features of the so-called “mixed jurisdictions”. One of the main features found in this group of legal systems, it is argued, is that they are civil-law in nature in the sphere of private law, while their public law sphere is typically Anglo-American. I argue that this may be correct as far as the structural elements of these two branches of law, for example with regard to the court structure; it may also be relevant in the context of the general, overarching values underlying both branches of law. However, as far as the detailed arrangements are concerned, a variety of set-ups reflect different types of mixes and combinations in all legal systems, including “mixed jurisdictions”: innovation, transplantation and adoption of which can be traced inter alia to global crosscutting between these two families of legal systems.This argument is developed through an analysis of the evolution of three grounds of review of the administration-unreasonableness, proportionality and legitimate expectations/ administrative promise-in the United Kingdom, the “ancestor” of the common law family of legal systems, and in Israel, currently considered a mixed jurisdiction. I show that both innovation and reliance on civil law constructs can be found in both systems just as much as common law constructs. The influence of EU law, especially ECtHR jurisprudence, renders the public law of the United Kingdom, to a certain extent, to be more civil-law-like than its so-called daughter system. Whether this mix of patterns is an unavoidable result of the irresolvable tension between exclusionism and openness, both willful and subjected, or matter that is particular to the distinct nature of administrative law and its case-by-case development in common law systems is a matter for further consideration. Clearly, though, legal reality, at least in the field studied in this article, challenges the viability of the distinction between “pure” and “mixed” legal systems.

Introduction The notion of mixed legal systems is essentially a modern idea that increasingly shapes discussions about the nature of the world’s legal systems. A mere fifty years ago, mixed systems were treated as legal aberrations and were scarcely discussed. The focus was on a coherent ordering of les grands systemes , and no space was found in taxonomies for composites and hybrids. Under the influence of ‘mixed jurisdiction’ studies and legal pluralism, however, there is growing awareness that mixed systems, whether restrictively or expansively defined, are a widespread and recurrent reality. They have recurred too often and have endured too long to be regarded as accidents and anomalies. A recent study maintains that ninety-one legal systems may be categorized as ‘civil law’, and forty-two are ‘common law’. However a higher number – ninety-four – are listed as ‘mixed’ systems. The study arranged these mixtures into ten subcategories, under such rubrics as ‘Common law and Muslim law’, ‘Civil law and customary law’, ‘Muslim law and customary law’, and ‘Common law and civil law’. It is thus apparent that all the traditions discussed in the earlier chapters of this Companion – the Western, East Asian, Jewish, Islamic and sub-Saharan – have provided the legal material from which this vast array of hybrids was created. (See the appendix to this chapter for the legal systems listed.) An important difference of opinion, however, exists over the proper meaning and constituent elements of a mixed system. Scholars in the ‘mixed jurisdiction’ tradition, who follow the footsteps of early British comparatists (see section 17.2 below), tend to restrict its scope to a single kind of hybrid where the most comparative research has been done – mixtures of common law and civil law. In that perspective the number of mixed systems in the field shrinks to fewer than twenty around the world. However, many scholars under the influence of legal pluralism (including the comparatists who conducted the Ottawa study just mentioned) use a more expansive, factually oriented definition that enlarges the field and has no obvious limits.

This essay introduces a contemporary description of the mixed jurisdiction of South Africa. It depicts how in South Africa co-existence, harmonization and resistance are found in different fields of law and identifies both pitfalls and benefits of mixity. Several components are introduced: civil law, English common law, local customary law, the Bill of Rights and international legal instruments. The successful harmonisation of civil and common law is ascribed to introduction of the English administration of justice. The British institutions, structure and process placed the focus on legal procedure and succeeded to avoid conflict between different legal cultures as economic transactions ignored different value systems and doctrine. The same model was, however, not applied in respect of indigenous customary law, where from the onset choices between values and doctrine were cast in stone with the consequent conflicts. The new constitution of 1996 is transformative and the courts are instructed to develop common law and indigenous law to promote the rights, values, spirit and purport of the Bill of Rights. Thus, in all fields of private law court decisions attempt to realise such transformation by harmonising constitutional values with legal tradition while strong impetus has been provided by legislation. As it appears that the need for harmonisation between civil and common law is experienced mainly in the commercial field, the question arises whether civil law jurisdictions can transform themselves into a mixed jurisdiction by way of legal transplants to facilitate the global market. Mixed legal systems developed mostly as the result of colonial history. Civil law and common law were able to mix because the common law court system and procedure made it possible for English trained judges to successfully merge certain areas of private law, primarily in the commercial field. This means that the court system and the law of procedure, but especially training, qualification and selection of judges are of paramount importance.

The Colour of Copyright

Unity, divergence and convergence in the common law of obligations / Andrew Robertson and Michael Tilbury -- The influence of comparative law on the English law of obligations / Andrew Burrows -- Unity, then divergence : the Privy Council, the common law of England and the common law of Canada, Australia and New Zealand / Paul Finn -- A conscious effort to develop a "different" common law of obligations : a possible endeavour? / Goh Yihan -- A common law of tort : is there a European rift in the common law family? / Paula Giliker -- A judicial perspective on the development of common law doctrine in the light of statute law / Anthony Mason -- Public actors and private obligations : a judicial perspective / Sian Elias -- The tort liability of public authorities : a comparative analysis / Peter Cane -- We'll meet again : convergence in the private law treatment of public bodies / Niamh Connolly -- How to have a common private law : the presuppositions of legal conversation / Allan Beever -- The philosophies of the common law and their implications : common law divergences, public authority liability and the future of a common law world / Dan Priel -- Obligations, governance and society : bringing the state back in / TT Arvind -- Divergent evolution in the law of torts : jurisdictional isolation, jurisprudential divergence and explanatory theories / James Gouldkamp and John Murphy -- Common law values : the role of party autonomy in private law / Sarah Worthington

LEGAL FRAMEWORK AND STATISTICS The legal system of the Hong Kong Special Administrative Region (Hong Kong SAR) is comprised of two main parts. First, the pre-1997 colonial era which consisted of a mixture of customary law, the English common law, equity, and local statutes. Second, after 1 July 1997 (the People's Republic of China resuming sovereignty over the Hong Kong SAR), the Basic Law is the Constitution of the Hong Kong SAR. The Basic Law preserves the law previously enforced ( i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law). LEGAL RULES AND HISTORICAL DEVELOPMENT Hong Kong ordinances use the term ‘sex’, ‘male’, ‘female’, ‘man’, ‘woman’ and ‘gender’, but they are not defined. Like many other jurisdictions, a person is assigned to either ‘male’ or ‘female’ at birth, and this is then recorded on the person's birth certificate. The first judicial decision on the meaning of the words ‘male’ or ‘female’, ‘man’ or ‘woman’ was the recent landmark judgment in W v Registrar of Marriages . In this case, the Court of Final Appeal recognised a post-operative male-to-female transsexual person's right to marry. W v Registrar of Marriages involved Ms W, who was stated in the judgment to be a ‘post-operative male-to-female transsexual person’. Ms W sought judicial review to quash the Registrar of Marriages’ refusal to allow her to marry her male partner. Her argument was premised on the ground that the Registrar misinterpreted the meaning of the words ‘woman’ and ‘female’ in section 40(2) of the Marriage Ordinance (MO) (Cap. 181) and section 20(1)(d) of the Matrimonial Causes Ordinance (MCO) (Cap. 179) respectively. She sought a declaration that the Registrar had wrongly regarded her as male for the purposes of these provisions. She also sought a declaration that such an interpretation was inconsistent with Article 37 of the Basic Law and/or Articles 14 and 19(2) of the Hong Kong Bill of Rights (the equivalent of Arts. 17 and 23(2) of the International Covenant on Civil and Political Rights (ICCPR)). The High Court (Andrew Cheung J) dismissed both of Ms W's claims. It held that the meaning of ‘man’ and ‘woman’ was a matter of statutory interpretation.

The Formative Stages of Common Law in South Sudan: The Ensuing Consequences for the Judiciary

Sir William Blackstone, an eminent jurist and professor of law at Oxford University, was the eighteenth century’s leading authority on the development of English common law. The underlying principles of the common law were based primarily on the customs and usages of the society, encompassing the ancient, often unwritten, laws of England, statutory enactments, and the judgments and decrees of the English courts. Blackstone’s monumental four-volume treatise on English Law, Commentaries on the Laws of England was first published in 1765 and was soon recognized as the authoritative guide to English common law. In the thinly settled American colonies, the need for a portable yet definitive guide to the common law made Blackstone’s Commentaries an essential treatise for colonial lawyers and magistrates. Even after the revolution, Blackstone’s work remained a cornerstone of early American jurisprudence, as adapted and edited by the federalist law professor St. George Tucker in 1803.

This book explores the use of the doctrine of good faith in the common law when interpreting contracts and resolving disputes. This doctrine is well-accepted in civil law, is reflected in international commercial law, and is a fundamental aspect of private law in the USA. However, its use in the UK is extremely limited. Inconsistent application has given rise to confusion and uncertainty. This apparent antipathy is somewhat hard to fathom, given its previous widespread acceptance in English law. The book explains in depth the history of good faith in English law, and clarifies its current status in English, Australian and international law. It explores the relationship between good faith within contractual relations and the neighbour principle in tort law, and notes the workability of good faith in the commercial context of insurance. This will be welcomed by contract lawyers in both common law and civil law jurisdictions. A subsequent volume will explore how acceptance of good faith in the law might lead to a re-interpretation of existing contract law doctrine.

This case is one of several types of legal claims that occurred due to the bankruptcy of H Shipping, which had a major impact on the shipping industry in South Korea. Among them, there are various issues such as the determination of the governing law for the claim for damages in relation to the termination of the contract due to the commencement of the rehabilitation procedure in time charters, the issue of the claim for the return of residual oil at the time of redemption in time charters, and the issue of the application of off-set under English law. Among the main issues related to this, we will look at the problem of the residual oil return bond according to the time charters’ forms. In the case where the governing law is designated as the English law of a foreign law, it is expected that the issue of off-set will be reviewed. First of all, there are many differences between the use of the NYPE 1946 and 1993 forms and the use of the NYPE 2015 forms. When using the former forms, it is necessary to supplement the ‘rider clause’. Especially, it is necessary to recognize that the residual oil return bond due to the termination of the time charter contract, which is the core of this case, is excluded from the NYPE 1946 form, but is included in the NYPE 2015 form. Next, there is the issue of off-set the termination of the contract under English law. The position of the English and Korean Courts are that set-off under common law and set-off under common law have a substantive nature in the application of set-off under the equitable law. Under English law, the problem of set-off for premature termination lies in the application of set-off under common law and set-off under equitable law. The judgment of the English court and the Korean court is that set-off under the common law is applied because it has a substantive law nature. Although it is a reasonable judgment, when the English law is applied as the governing law, there are cases where the position on the permissible off-set by the cause of the voyage charter party and the time charter party is different in carriage of goods by sea, so additional review is necessary. Based on these results, it is hoped that they will serve as practical references in the future.

This chapter focuses on the sources of law in England and Wales, and is organised as follows. Section 2.1 describes the key jurisdictions relevant to lawyers in England and Wales. Section 2.2 deals with the issue of where the law comes from: sources of law. Section 2.3 reviews the development of the two ‘traditional’ sources of law in England and Wales: case law and statutes. Sections 2.4 and 2.5 consider the status and operation of EU and international law, including the potential effect of Brexit. Section 2.7 goes on to discuss public and private law, common law, and civil law, and other classifications used by lawyers. This is followed by a discussion of legal systems and their cultures across the world.

PurposePrecontractual liability may be imposed when a party acts in bad faith to damage the other party, when a party negotiates in order to discover business secrets with no intention of reaching a final agreement, or when a party to a non‐binding letter of intent terminates negotiations during a later phase of negotiations without legitimate reason. The purpose of this article is to clarify the concept of the duty to negotiate in good faith, either for Civil Law or Common Law system practitioners.Design/methodology/approachThe paper describes the concept of good faith and fair dealing and its effects on the negotiation process. After establishing this description, we will analyze the differences in the interpretation and the application of the concept of good faith in the pre‐contractual procedure. The article explores the Civil Law approach for this matter, followed by the Common Law approach. In order to illustrate the Common Law System, we will focus on English and American Law, while we will look mainly at German, Brazilian and French Law to illustrate the Civil Law. In the conclusion, we will compare the approaches of the two systems.FindingsThe obligation of good faith in negotiation is found practically in all civil law system countries and generally provides a remedy for a wrongful conduct produced by a bad faith act. However, there is no general rule in Common Law requiring the parties to negotiate in good faith. We are in favor of applying a more expansive view of good faith obligations for international business transactions involving two or more different countries from these two different legal systems (civil law and common law), so as to apply them to the duty to negotiate arising from preliminary agreements and negotiations.Although there is no general rule about pre‐contractual liability in the common law system, we strongly believe that the existing body of case law and statutes may punish a party which engages in unfair conduct at the pre‐contract stage if the parties had signed a letter of intent or a memorandum of understanding, requiring them expressly and clearly to “act in good faith” and/or “to use their best efforts to reach an agreement”.Originality/valueThis article has discussed a relatively unexplored area related to the obligation of good faith in negotiation either for civil law and common law's practitioners. Our research has highlighted the complexity of this matter between these two legal systems, and has helped to the identification of the concept of good faith in a relation between two or more parties.

Having established in a broad comparative survey what caused the preponderance of judge, legislator or jurist in Europe, I now intend to return to my starting point, the difference between the English common law and the rest of Europe. The reason why the English judiciary played such an exceptional role has been established, but this fact does not by itself explain why the English common law is so different. One can very well imagine an English, judgemade variant of a common European law. Thus one hears that at the present time the same European Community rules are not interpreted similarly on the Continent and in the United Kingdom. Judges' law in one country and legislators' law in others would normally have produced some differences, but these might have been technical only, without involving the substance of the law. To put it in more concrete terms: one can imagine a situation where the substance of European feudal law remained common to all countries, even if its development in the course of the later Middle Ages was the task of the judiciary in some countries and of the legislature in others. Equally one can imagine that more progressive laws corresponding to an urban and commercial society would have arisen through the action of judges in some countries and of kings and estates in others. The difference between common law and continental law goes much further than that: they were not only developed by different organs, their very substance was different, the one being traditional, native and feudal, the other new, foreign and Roman.

The article analyzes the doctrine of hardship in the contract law of Ukraine, France, Germany, England. The grounds for modify ing or terminating the contract due to a hardship are analyzed. A comparative analysis of the court ’ s powers to modify the contract in connection with a hardship is carried out . In French civil law the doctrine of l’imprévision covers all situations in which a party’s contractual obligations have become harder and more onerous to perform because of an unforeseen event posterior to the conclusion of the contract. The conception of hardship was introduced to Ukrainian Civil Code in 2004 for provide the contractual parties to overcome the negative impact of a change of circumstances that was unforeseeable at the time of the conclusion of the contract and renders performance excessively onerous for one of them . This provision is aimed, on the one hand, to restore the balance of interests in contractual relations and to reduce risks, and on the other hand, to keep the contract, as far as possible, preference given to the adaptation of the contract over its termination. Unfortunately, the case law indicates difficulty in implementing the provision of hardship. In English law doctrine is formed the concept of frustration. The only remedy for frustration in common law is termination of the contract; and termination is permanent – English law does not recognize partial frustration nor temporary frustration. German doctrine of hardship has been conceptualized into three aspects requiring a change of circumstances, the parties would not have concluded the contract if they had been aware of this change, and it would not be equitable for one party to deny the other party any amendment of the contract. German approach has been adopted in many harmonization projects and international instruments of contract law, in particular Principles on European Contract Law, Draft Common Frame of Reference, UNIDROIT Principles of International Commercial Contracts. In French, English and Germany law is established three different approaches to cases of contractual impossibility as an exception to pacta sunt servanda: contractual parties are not discharge unless performance has become impossible; as exception for impossibility to some cases; or as separate exception. The main problem nowadays is the lack of definition of “ significant change of circumstances ” in Ukrainian legislation and case law. Such a rule seems to increase legal uncertainty as the criteria of its implementation are vague and have not yet been firmly and precisely defined by case law. In most cases, the courts do not recognize the change of circumstances referred to by the party as significant. Ukrainian c ivil law doctrine defines “ significant change of circumstances ” as change of circumstances that did not depend on the will of parties and was the result of certain actions from the outside; and contains four features: was unforeseeable at the time of the conclusion of the contract, its duration and inevitability, arise without fault of the parties. The law of many states and international soft law gives courts power to modify or terminate the contract in case of change in circumstances. French Civil Code not contains certain grounds in the event of change in circumstances to modify or terminate the contract. They are the same as in case of contract modification or termination by parties. In contrast, Ukrainian legislator decreases significantly judicial intervention in contractual relations. The power of Ukrainian courts to modify the contract is based on the general principles of contractual freedom, if parties in contractual terms lay down modification the contract in case of change in circumstances that was unforeseeable at the time of the conclusion of the contract renders performance excessively onerous for a party.

Ansel Adams, the celebrated pioneer of landscape photography, observed that ‘not everybody trusts paintings but people believe photographs’. Whereas a painting is subjective, a photograph is accepted almost axiomatically as an accurate depiction of reality, and society’s faith in photography’s veracity has continued through its evolution to film and digital media. Indeed, when referring to the speed of frames shown in motion pictures, French filmmaker Jean-Luc Godard expressed that while ‘photography is truth, cinema is truth twenty-four times per second’. Even as photographers and film studios continue to push the boundaries of visual arts through Photoshop and computer-generated special effects, the public has largely been capable of appreciating the distinction between the fanciful from the factual and the artistic from the authentic. The deepfake video now challenges this paradigm and does so on an unprecedented scale. Some early commentary out of California1 suggests sui generis laws to address deepfakes are not necessary because existing legal doctrines are sufficient if applied correctly. This assertion is supported by the fact that California explicitly recognizes an individual’s legal right to control and commodify the expression of their image. As courts in the UK do not recognize such a right, one may query whether an individual can protect herself against a malicious deepfake under English law.2 From this question stems the idea that the ‘Golden State’ of California may be able to provide a ‘golden’ standard for image rights in the age of the deepfake. While comparisons between American and English image rights are not new, the novelty of deepfake technology warrants a renewed analysis. Furthermore, this article offers a departure from many others on the subject because it measures English laws against those of California specifically, rather than a survey of laws across several American states.