European Union Law as Foreign Law.

• Author: Zemer, Lior

Table of Contents I. Introduction 679 II. Data and Methodology 681 A. The Database 684 B. Methodology: Citation Analysis 685 III. Findings 688 A. The Influence of EU Law on Israeli Public Law 689 B. The Influence of EU Law on Israeli Private Law 710 C. General Trends in the Status of EU Law as Forign 731 IV. Conclusion 734 "We are too heavily influenced by American jurisprudence, which is not very theoretical; It is good to study the legal system developing on the European [continent] as well. " (1)

1. INTRODUCTION

   Through integrated qualitative and empirical analysis, the Article seeks to complete the theoretical and historical discussion introduced in the first part of this study. (2) The previous Article traced the development of comparative law in Israel, discussing the theories driving this area of study and the rising prominence of comparative law against the backdrop of an increasingly resounding international judicial dialogue. The previous Article surveyed the empirical evidence gathered to date in the local academic literature regarding the employment of comparative law by Israeli justices, which sheds light on the foreign sources referenced by ISC justices over years past. This study finds issue with past studies, which concentrated solely on the two most prominent legal systems--common law (the Anglo-American system) and civil law (the Continental system). Instead, the Article offers a fresh perspective on comparative law in Israel. The object of the Article is not a national legal system, but rather a supranational legal system--that of the EU. The absence of this legal system from the local comparative law literature is absolute, despite the fact that it is a source appearing in an increasing number of ISC rulings, as evidenced in the findings of the Article.

   While a large part of past studies sought to examine shifting trends in the volume of references to foreign law in the entire inventory of ISC rulings over the periods examined without paying particular attention to EU law, the Article focuses solely on those rulings which refer to sources in EU law. Consequently, it does not address absolute or relative changes in empirical trends in the overall citation of foreign law, nor does it assess the quality of these citations, but rather indicates a trend of growing interpretive and theoretical approximation--through open judicial dialogue--of Israeli jurisprudence to EU law, as part of a more comprehensive convergence, rooted in historical circumstance and Israel's relations with the EU. Part B of the previous Article analyzed the mosaic of complex political relations between Israel and the EU. This analysis demonstrated that, despite the volatility of the relations between the sides, relations between the EU and Israel are continually expanding and being enhanced. This analysis serves as the basis for understanding that the continually rising referral to EU law in ISC rulings, as will be laid out in the Article, is not occurring in a vacuum, nor is it disconnected from the other components comprising relations between the sides, but as discussed in the previous Article is rather a part of larger trend of rapprochement between Israel and the EU.

   The purpose of the Article is to illustrate the manner in which Israel's Supreme Court justices refer to normative sources in EU law for various purposes. The process of collecting the empirical and descriptive data used in both Articles is rather unique, and as a matter of fact, this is the first database in Israel and abroad that addresses relations between Israel and the EU in the area of jurisprudence. This database will certainly serve researchers in the future in more advanced statistical and empirical analyses of the issues brought to light in the Article. However, since this is the maiden voyage in which the studied phenomenon is examined, the primary objective of the Article is to lay out the regard Israel's Supreme Court justices attribute to EU legal sources, as reflected in their rulings.

   The findings of the Article indicate the inculcation of legal norms from the EU jurisprudence into ISC rulings (3) and the steadily rising status of EU law in these rulings since 1980. In its rulings--including principal rulings with wide-reaching implications--the ISC currently cites various sources of EU law, drawing interpretative, normative, and theoretical inspiration from them. In the realm of public law, the most frequent referencing to EU sources is found in constitutional law, while in the realm of private law, intellectual property issues prompted the most frequent citations. The Article also points to a perpetual, steady upward trajectory in the number of rulings overall citing EU legal sources.

   Moreover, the Article shows a sharp qualitative rise in the scope and length of the EU-sourced citations during the period under examination. These and other data presented in this as well as the previous Article indicate an interpretive and theoretical approachment of Israeli jurisprudence towards the norms and principles found in the EU legal system.

   The Article is structured as follows: Part II reviews the data and methodology used in the empirical research. The manner in which the database has been constructed is described and the role of citation analysis in legal research is discussed, both in terms of the academic literature in general and how it has been adapted and adopted in the Article. Part II focuses on a non-exhaustive collection of ISC rulings which refer to EU jurisprudence. This more traditional, descriptive analysis demonstrates how EU sources have been integrated into the rulings and have gained stature as foreign law in Israeli case law. The cases reviewed were selected from a wide range of legal disciplines and serve as a representative showcase as to the manner in which ISC justices chose to reference EU law sources as well as extract from and rely on them in deciding the issues placed before the court. Some of the rulings in Part III are considered seminal to Israeli jurisprudence. The impact of EU law on Israeli public law is discussed first, and its influence on the various disciplines of private law is examined later. A general sample examination of references to other EU sources, which are neither legislation nor case law, is discussed towards the end of Part III. The conclusion addresses additional trends relating to the status of EU law as foreign law as gleaned from the database constructed in the Article.

2. DATA AND METHODOLOGY

   Traditionally, the volume of qualitative studies far outweighs that of quantitative studies in the legal literature. In recent decades, however, there has been a perceptible growth of empirical legal studies. Indeed, over the years legal scholars conducted theoretical studies, which analyzed social norms, discussed philosophical issues, and developed legal theories for the purpose of vetting these norms. However, with the rise of legal realism--the theory that all law derives from prevailing social interests and public policy and the approach that jurisprudence should rely on empirical evidence--empirical research has risen in stature in the discourse surrounding the methodologies employed in the study of law. (4)

   The number of empirical legal studies is steadily rising, and some legal scholars are convinced that this development is necessary for establishing law studies as a "real science." (5) Intuitively, it can be claimed that the disciplines of philosophy and literature are examples of disciplines for which empirical methodology is not that relevant, since the resolution of philosophical issues, for example, is accomplished by hypothetical-deductive reasoning. (6) Indeed, as a discipline, law has a philosophical dimension, particularly when legal and normative coherence are grounds for the hypothetical-deductive analysis of issues. However, the legal discipline also consists of a practical dimension. (7)

   Over 110 years after Oliver Wendell Holmes described the law as the prediction of punishments or consequences that will be determined by the courts, (8) one of the most prominent justifications for the incorporation of quantitative science in the study of law today is that the examination of legal theories from a social standpoint inevitably includes an element of prediction, which could either lead to the validation of a theory or to its refutation. (9) Scholars seeking to justify the incorporation and implementation of empirical research in legal literature claim that quantitative research clarifies our understanding of certain legal matters. Empirical research goes far to explain enduring legal questions, which elude traditional theoretical research. Traditional approaches fail to address these queries in an inclusive matter or to provide comprehensive solutions to them. (10) Consequently, empirical research can serve as a tool to a further understanding of the particular implications of the law or the legal system as a whole. Indeed, Holmes's prediction principle covers not only foresight into outcomes, but the examination of the effectiveness and fairness of the legal system as well. A quantitative, empirical approach does not denigrate the value of a qualitative, descriptive analysis of a certain social or legal phenomenon. It can, however, significantly contribute to the strengthening of an argued theory as well as the strengthening of proposed normative solutions. It appears that in the near and not-so-near future, the role of empiricism in legal research is likely to increase. Already today it is clear that the recognition of its importance and contribution is continuously growing through new academic journals focusing on empirical legal research, (11) research conferences, and specific academic associations. (12) Similarly, many law schools offer courses in empirical legal studies. (13) This growth reflects the recognition of the importance of empirical legal research...