By: Lior Zemer & Sharon Pardo
PDF: European Law as Foreign Law
The importance and significance of comparative sources to the development of Israeli jurisprudence is expressed in local legislation and rulings. The impact of foreign law on the
development of Israeli law has been analyzed and vindicated in numerous studies in the local legal literature. These studies typically focus on the two most prominent legal systems— common law (the Anglo-American system) and civil law (the Continental system). The historical reasons for this are clear, emanating from the fact that Israel’s legal system is based on these legal regimes and is amended in the spirit of changes made to them. Over the years, however, Israeli law has developed and has become a diverse mosaic which has appropriated doctrines
and interpretations on legal issues drawn from various other legal traditions.
One of the most prominent legal systems to emerge in recent years is that of the European Union (EU), currently the largest democratic bloc in the world. Despite its relative novelty, EU law has greatly influenced the development of legal interpretation in Israel. The Article seeks to complete the portrait painted in the study by the research briefly introduced in these authors’ previous Article, The Image of European Union Law in Bilateral Relations, which laid the theoretical and historical foundations of the role played by comparative law in Israeli jurisprudence and outlined the development of Israel-EU relations over the years under discussion. In the Article, the portrait is completed through an integrated empirical and descriptive analysis of Israeli Supreme Court (ISC) rulings, based on a database of all rulings referencing EU law sources in any manner during the years 1948–2016.
The Article’s findings indicate a gradual yet continual diffusion of legal norms emanating from EU law into ISC rulings, as the status and resonance of EU law among Supreme Court justices in Israel demonstrate. The referencing of sources drawn from EU law, as evidenced in the findings, has been made, inter alia, in several principal and precedent-setting rulings which carry far-reaching implications. The EU sources cited in these rulings provide the foundations for interpretive, normative, and theoretical inspiration, and at times serve as a base against which local law is either reinforced or challenged. The Article’s findings highlight a perpetual positive trajectory in the number of ISC rulings citing EU legal sources. In addition, they also point to a steep qualitative rise in the size and scope of these citations during the period examined. These findings challenge the perceived absence of EU law from the discussion of comparative law and underscore the role played by EU law in the normative development of the legal systems of third countries which are not members of the EU. The Article’s results fortify the claim that a theoretical and interpretative approximation of Israeli jurisprudence to the theories and norms found in the EU legal system is underway and that this is part of a larger process of convergence between Israel and the EU in all spheres of life.