Civil Codification, Law and Culture in a Mixed Legal System

Abstract

Compartists usually describe mixed legal systems as being built upon dual foundations of Romano-Germanic civil law and Anglo-American common law. This widely accepted description examines mixed systems from an internally legal perspective, and addresses the hybrid character and origin of their laws. As opposed to the intra-legal viewpoint, this paper offers a new yardstick for investigating mixed systems: an external - meta-legal - perspective, which examines the complex interplay between law and culture in a mixed jurisdiction. My case study is the codification of private law in the mixed system of Israel. A civil code does not reflect the inner logic or history of the Israeli legal system, as this system has been shaped mainly along Anglo-Saxon lines which generally discourage the enactment of codes. But seen from an external - meta-legal - perspective, a civil code is not a concept alien to Israeli society, because the idea of civil codification and its perception as a symbol of legal independence and modernization are inherent in the European political culture that most Israelis are familiar with. The story of civil codification in Israel demonstrates that beyond the common-law-civil-law mixedness within Israeli law, the Israeli legal system is also mixed in a more profound sense, namely, it contains a spatial separation between the law which is primarily (though not exclusively) influenced by the Anglo-Saxon tradition, and the legal and political culture which is mainly inspired by ideas embedded in continental Europe, which were imported to Israel by Jewish immigrants. In order to understand civil codification in Israel, familiarity with Israeli law and institutions is therefore insufficient; one must also appreciate the political culture of the country.