By: Sharon Pardo and Lior Zemer
The impact of foreign law on the development of national laws has been analyzed and vindicated in numerous studies in comparative 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 the world’s legal systems are based on these legal regimes and are amended in the spirit of changes made to them. Over the years, however, with the many effects of legal and economic globalization, legal systems have 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 of countries in the world. Despite its relative novelty, EU law has great influence on the development of legal interpretation in many legal systems. This Study, which is laid out in two complementary Articles, is the first to empirically examine the influence that EU law had on the development of a non-EU country. These Articles take Israel as a case study on which normative conclusions can be drawn for other non-EU countries with whom the EU has established close bilateral legal, economic, cultural, and social relations. The importance and significance of comparative sources to the development of Israeli jurisprudence is expressed in local legislation and rulings.
The first Article comprising this Study is this Article that explains the legal image of bilateral relations between the EU and third countries. The sequel Article is devoted to empirically translating this image into legal results. The boundaries of the Study are not confined to Israel but have a profound effect on the development of comparative research relating to EU law. The Study offers a novel method by which to measure the impact of EU law on third countries’ legal systems. The Study is conducted against the backdrop of the growing debate surrounding the frailty of the EU in past decades, particularly in light of the voices among member states today calling for its dismantling. Despite this, as this Study proclaims, the impact of EU law on third-country legal systems must not be undermined.
This Study is new to local and international discourse, and is part of a broader research project examining the impact EU law has on the way other countries interpret their own laws. Previous scholarship has demonstrated that those prevailing in “leading legal systems” place
interpretive dependence on the accepted legal doctrines in Israel. Ironically, these inquiries fail to consider the EU as an independent legal system, even though it attained this status shortly after the end of World War II. In contrast, this Study does not analyze the diffusion and impact of the respective national legal systems of the Union’s member states on Israeli law, but rather limits the focus solely to supranational EU law. The Study points to the importance of EU law, weaknesses notwithstanding, as an influential element in Israeli case law. The Study contradicts the EU’s expectations regarding its role in the international arena, and it further contradicts the growing global importance of EU law.
The findings of this Study strengthen the argument that, when engaging in comparative law, Israeli courts, similar to other non-EU countries, tend to limit themselves to specific legal systems. In doing so, they calcify interpretive approaches and close themselves off to additional sources that may contribute to the development of local law. In previous articles on the use of comparative law in Israel, EU law has not been empirically analyzed in its entirety, and it seems that the aforementioned tendency of the courts characterizes researchers in this
field as well, leading to the perpetuation of the prevailing traditional approach to comparative law.