|dc.description.abstract||Civil Law codices are analytic, abstract and removed from the specific influence of
particular cases. When rules are codified In Common Law systems they reflect a
collection of rulings and not a collection of analytic principles. These differences stem
from the nature and the motivations of the legislative enterprise. Civil-continental
legislation originates in a legislative initiative “from above”. It is driven by the aspiration
for legal harmony and completeness, and was originally formulated by academics.
Legislation in the common-law countries results from a "bottom up" effect in which
reality dictates the nature of the developing rules, step by step.
Civil law systems like Common Law systems accept the supremacy of the statutory law
over judge-made law. Yet when the judiciary has the authority or the power to influence
the legislative agenda there is a veritable role switch. In a manner resembling
continental-style legislation, the court reviewing existing legislation determines an
abstract principle, usually in reliance on a particular constitutional text, and it is the
legislature that is required to distill the principles into specific legislative norms, a
function normally fulfilled by the common law court. The question forming the basis of
this paper is the nature of the legislative process and the legislation produced by this
kind of relationship.
The paper addresses this question through the narrow prism of a detailed examination
of a particular Israeli test case in which the Israeli Supreme Court handed down a ruling
on a fundamental principle but on its own initiative delegated to the legislature the taskof implementing it and providing a specific legislative enactment of this principle, on the
basis of which the Court would then rule on the concrete case. The result in this
particular case was that the traditional roles of the respective branches were reversed.
The practical result of the move to delegate the implementation of a far-reaching and
fundamental ruling to the legislature was a subversion of the fundamental ruling and
delayed justice for the parties who sought a resolution of the matter.
The paper claims that this mechanism leads to the creation of a new variety of a "mixedsystem".
The judiciary abandoned its primary obligation, namely to serve as an instance
for resolving disputes, while the legislature became an executor of judicially enunciated
principles. The law thus enacted resembles, in its detailed and complex language, a
common law text while the principle formulated in the judgment of the court resembles a
section of an analytical "civil law" statute. When the motivation for legislation stems from
the court's directives, rather than the governmental or legislative interests, the
legislature or the executive branch has an interest in thwarting the court’s intention
through the use of various tactics readily at its disposal. This process also affects the
vague and detailed formulation of the legislation, which has a character rather different
from the abstract nature of civil law legislation. The lesson that this episode teach us,
which the court itself internalized, is that a court cannot really dictate a legislative
agenda and that it should instead focus on its designated role – the resolving of