HARMONISATION OF ISRAELI LAWS

AND THE EU ACQUIS:The Social Dimension

Guy Harpaz

A Paper presented at the International Joint Conference of the Czech Association of European Studies and the Israeli Association for the Study of European IntegrationIntegrating with the European Union: Accession, Association and Neighborhood

PolicyCharles University, Prague, 2-3 September, 2007

HARMONISATION OF ISRAELI LAWS AND

THE EU ACQUIS: The Social Dimension

Guy Harpaz*

1. Introduction

In recent years the EU has offered its neighbouring countries in the Mediterranean,

including the State of Israel, enhanced trade and political relations. In return, it

expects them, inter alia, to align their legislation, to an extent yet to be determined,

with its acquis communautaire.

This link between enhanced trade and harmonisation of laws is attracting much

scholarly attention in Israel. Traditionally, scholarship focused on the legal and

economic implications stemming from such a link, examined from the perspective of

Israel.1 Lately more attention is devoted to the social aspects of such a link.2 This

Paper attempts to contribute to existing research by placing further emphasis on this

social dimension.

1* Jean Monnet Lecturer, Law Faculty and Department of International Relations, Hebrew University, Jerusalem. I would like

to express my gratitude for the helpful comments of Ronit Ben Dor, Kristina Folman, Michal Gal, Lior Herman, Moshe Hirsch,

Dvora Milstein, and to my research assistants, Alon Unfus, Yehuda Herbst, and Asaf Shamis. I am also grateful for the

generous support given by the EU under the aegis of the Jean Monnet Action, by the Leonard Davis Institute for International

Relations, the Hebrew University and by the University Institute for Diplomacy and Regional Co-operation, Tel Aviv

University. The usual caveat applies. For legal analysis of approximation of laws, see Harpaz (2006a). For an international

relations' analysis, see Harpaz (2007b). For a more focused analysis of the interface between approximation of laws and

sovereignty and society, see Harpaz (2007c). Comments are welcome to gharpaz@mscc.huji.ac.il.

? Harpaz (2006a); Reich (1999); Reich (2001); Gal (2007).

2 Tovias (2007); Gal (2007).

2

More specifically, the Paper will address the socio-normative appropriateness of

importing EU legal norms to the State of Israel, given the socio-economic and geo-

political differences that prevail between the EU and Israel.

Although the analysis is conducted through the prism of Israel, some of its findings

may be found to be applicable, mutatis mutandis, to other countries in the

Mediterranean and elsewhere that are facing legislative pressures from economic

powers.

2. Harmonisation of Laws

Harmonisation or approximation of laws may be defined as the process of making

different domestic laws, regulations, principles and government policies the same or

substantially similar.3 In the course of this process, features of different legal systems

are reconciled.4

Such a legislative course of action is especially beneficial for international trade, as it

may reduce information costs,5 allow traders to utilize economies of scales,6 and

render the international trading arena fairer,7 more predictable and less costly, thereby

facilitating and intensifying international trade,8 and attracting more foreign

investment.9 In fact most countries cannot engage in international commerce or expect

3 Mayeda (2004). See also Leebron (1996).

4 Boodman (1991), at p. 703.

5 Enabling market entrance even for relatively small sales, see Leebron (1996), at p. 88, but compare with Boodman (1991), at

p. 715: The absence of harmonisation of laws may not necessarily increase in any significant manner the costs of inter-

jurisdictional business.

6 Leebron (1996): If a manufacturer faces significantly different requirements in each jurisdiction for which it manufactures, it

will not be able to achieve economies of scales beyond its market share in one jurisdiction.

7 Leebron (1996).

8 Reich (2001). See also Commission of the European Communities (2005), Section 2.2(c): Approximation of technical

legislation in the area of standards and conformity assessment bears an important potential in terms of trade creation,

investment attraction and integration of economies. The objective is to promote trade by aligning standards and technical

requirements, reducing costs related to duplicative testing and certification and thus facilitate market access.

9 Geradin and Petit (2003), at p. 173.

3

international investment without aligning their municipal legislation towards common

standards.10

Harmonisation of laws can take place unilaterally, bilaterally or multilaterally. It can

be a mutual, cooperative process, in which countries attempt to reach a legislative

compromise in order to bridge legal differences, or constitute instead a one-way

process, whereby one country adopts the laws of another.

The EU is a fine example of regional integration under which extensive cooperative

harmonisation of laws has continuously been performed. In the EU this process has

gone beyond merely reducing legislative differences and adopting common legislative

instruments, to enter the realm of harmonizing the Member States' policies, regulatory

schemes and institutions. Harmonisation of laws within the EU may thus be seen as a

co-operative process of creating a quasi-Federal European legal system, which

contributes, in turn, to the positive integration of the Internal Market, and

consequently to socio-political integration.11

The meaning of harmonisation of laws is, however, rather different in the Euro-Med

context. As demonstrated in the following Section, harmonisation of laws constitutes

a paternalistic process under which the Mediterranean neighbours are required to

bring their legislation closer to that of the EU, and not vice versa.

Some scholars term such one-way harmonisation of laws "legal transplant".12 Such

legal transplant proves to be the most fertile source of legal development,13 given the

processes of democratisation, economic development and globalisation.14

3. Harmonisation of Laws in the Euro-Mediterranean Context

10 Miller (2003), at pp. 839-840.

11 Walker (1980), at p. 72.

12 Watson (1974); Small (2005); Kahn-Freund (1974); Legrand (1997); Ewald (1995); Waller (1994); Watson (1980); Watson

(1996); Markovits (2004); Berkowitz, Pistor, and Richard (2003); Miller (2003); Mattei (1994); Spencer Weber Waller (1994);

Twining (2006).

13 Mattei (1994). See also Pound (1938), 94: "history of a system of law is largely a history of borrowing of materials from

other legal systems..".

14 Miller (2003), at pp. 839-840.

4

A. EU-Mediterranean and EU-Israeli Relations

Relations between the EU and the non-EU Mediterranean countries are regulated,

regionally, under the European Mediterranean Policy, better know as the Barcelona

Process. The Barcelona Process was designed to regulate and advance the economic,

political and social relations between the EC and its Member States, on the one hand,

and the non-EC Mediterranean countries,15 on the other hand.16

These regional relations are supported by bilateral relations between the EU and its

neighbours in the Middle East and North Africa. Such bilateral relations are governed

by respective Association Agreements (the Euro-Med Association Agreements).

Under the Euro-Med Association Agreements, the EU and the respective

Mediterranean countries granted one another preferential economic, commercial and

technological status. The core of each Euro-Med Association Agreement is a free

trade area for industrial goods. A legal framework for liberalisation of trade in

agricultural goods, of services and of movement of capital is also provided for.

Current bilateral trade and economic ties between the EU and Israel are founded upon

and facilitated by the 1995 Association Agreement between the EC and its Member

States, on the one hand, and the State of Israel, on the other hand (The Association

Agreement).17 Under the latter, each party granted the other preferential commercial,

technological and research status. The core of the Association Agreement is the

reinforcement of the free trade area for industrial goods, created already under the

aegis of the 1975 Free Trade Agreement.18 Industrial goods can thus be exported from

the EU to the State of Israel and vice versa, exempt from custom duties and, in

principle, free from quantitative restrictions. A legal framework for the liberalisation

15 Since then Cyprus and Malta joined the Union as Member States and Turkey commenced accession negotiations.

16 See EC Barcelona Declaration (1995) For analysis, see Hakura (1995); Heller (2001); Tovias (2003b); Gillespie (2003).

17 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, on

the one part, and the State of Israel, of the other part, Official Journal L 147, June 21, 2000, p. 0003-0171. For analysis, see

especially, N. Munin (2003), pp. 145-226 [Hebrew]; Reich (1999), at pp. 398-403 [Hebrew]; Hirsch (1996).

18 See Article 6 of the EU-Israel Association Agreement (1995).

5

of trade in agricultural goods,19 the provision of services,20 and movement of capital,21

is also provided.22

Currently the EU and the non-EU Mediterranean countries, including Israel, are in the

process of upgrading prevailing bilateral and regional relations within the framework

of the European Neighbourhood Policy (ENP).23 One component of the ENP is the

concept of approximation of laws.

B. Approximation of Laws in the EU-Med Context

Each and every Euro-Med Association Agreement provides a general legal basis for

the approximation of laws between the two respective parties. The EU-Israel

Association Agreement, for example, includes a provision that stipulates that "The

Parties shall use their best endeavours to approximate their respective legislations in

order to facilitate the implementation of this Agreement".24

The general call for approximation of laws provided for under Euro-Med Association

Agreements is supported by more specific provisions scattered throughout these

Agreements.

19 Articles 10-15 of the EU-Israel Association Agreement (1995).

20 Articles 29-30 of the EU-Israel Association Agreement (1995).

21 Articles 31-34 of the EU-Israel Association Agreement (1995).

22 The Association Agreement must not, however, be perceived merely as an economic instrument. It also sets out the basis

for, inter alia, cultural, research and political co-operation See Commission Staff Working Paper, "European

Neighbourhood Policy, Country Report, Israel" (COM(2004)373 final), Brussels, 12 May 2004, SEC(2004) 568: The State

of Israel participated in the fourth, fifth and sixth Framework Programmes for Research and Technological Development.

Israel and the Commission initialled in March 2004 the agreement on Galileo, Europe’s satellite radio navigation

programme. See also the Preamble and Articles 1-2 of the Association Agreement, which refer to the mutual objective of

promoting peace, security and regional co-operation, and to the need to advance stability, prosperity, understanding and

tolerance in the Mediterranean region.

23 Harpaz (2005a); Harpaz (2006a); Harpaz (2006b); Kelley (2006); Aliboni (2005); Del Sarto and Schumacher (2005);

Balfour and Rotta (2005); Tocci (2005a); Lynch (2005); Emerson (2004); Emersson and Noutcheva (2005).

24 See Article 55 of the EU-Israel Association Agreement (1995).

6

For example, these provisions call for approximation of laws in specific sectors of

EU-Israeli relations, such as intellectual property,25 agriculture,26 standards,27 financial

services,28 and combating drugs-trafficking29 and money laundering.30 Similar legal

arrangements for approximation of laws can also be found in the EU-Algerian

Association Agreement31 and EU-Tunisian Association Agreement.32

The call for approximation of laws was couched in neutral terms in the various Euro-

Med Association Agreements. Nonetheless, given the clear economic asymmetry

between the EU and the neighbouring countries, the heterogeneity of these countries,

and the EU's external aspirations, the EU does not perceive approximation of laws as

a co-operative process among equal states, as it had been perceived in the context of

the Internal Market. Rather, it is seen as a paternalistic process under which the

Mediterranean neighbours are expected to bring their legislation closer to that of the

EU.33

The ENP intensifies the EU's legislative pressures: "In return for concrete progress

demonstrating shared values and effective implementation of political, economic and

institutional reforms, including aligning legislation with the acquis, the EU's

neighbours should benefit from the prospect of closer economic integration with the

EU".34

25 See, for example, Article 39 of the EU-Israel Association Agreement (1995).

26 See, for example, Article 46 of the EU-Israel Association Agreement (1995).

27 See, for example, Article 47 of the EU-Israel Association Agreement (1995).

28 See, for example, Article 48 of the EU-Israel Association Agreement (1995).

29 See, for example, Article 56 of the EU-Israel Association Agreement (1995).

30 See, for example, Article 56 of the EU-Israel Association Agreement (1995).

31 See, for example, Articles 56 and 57 of the EC-Algerian Association Agreement, see

http://ec.europa.eu/external_relations/algeria/docs/assoc_art.pdf (last visited 12 July, 2007).

32 See, for example, Articles 51-53 of the EC-Tunisian Association Agreement,

http://trade.ec.europa.eu/doclib/docs/2006/march/tradoc_127986.pdf (last visited 12 July, 2007).

33 See Geradin and Petit (2003). The area of competition law is a case in point, see ibid., at p. 167: high expectation on the part

of the EU, in particular in the area of competition law, where the EU expects the neighbouring countries' deep convergence of

competition rules and regulatory practices.

34 Communication from the Commission to the Council and the European Parliament, Wider Europe-Neighbourhood: A

New Framework for Relations with our Eastern and Southern Neighbours, COM(2003) 104 final (2003), 10.

7

The various Action Plans,35 signed under the aegis of the ENP with the State of Israel

and other countries,36 increase the pressures upon them to approximate their laws to

those of the EU.

The EU-Israeli Action Plan,37 for example, states that the "convergence of economic

legislation” and “legislative and regulatory approximation” by the State of Israel,38 is

linked to further economic and political integration. The same legislative agenda is

embedded in other Action Plans signed under the ENP. The EU-Jordan Action Plan,

for example, provides that "The implementation of the Action Plan will significantly

advance the approximation of Jordanian legislation, norms and standards to those of

the EU".39 Similar provisions are to be found in the EU-Morocco Action Plan,40 EU-

Lebanon Action Plan,41 and EU-Palestinian Authority Action Plan.42

35 Action Plans, based on the Strategy Report and the relevant Country Report, provided a specific outline of reciprocal

social, political and economic commitments between the EU and the relevant neighbouring state, covering political

dialogue, economic and social development policy, trade, and justice and home affairs.

36 For the text of the Actions Plans, see http://ec.europa.eu/world/enp/documents_en.htm (last visited on 6 June, 2007). See, for

example, Section I (Introduction) of the EU-Israel Action Plan (2005) http://ec.europa.eu/world/enp/documents_en.htm (last

visited 6 June 2007). .

37 The Action Plan with Israel was endorsed by the Commission, by the Government of Israel and by the EC-Israel

Association Council The EU-Israel Action Plan, which involves "a significant measure of economic integration and a

deepening of political co-operation", is aimed at the fulfilment of the [1994] Essen Declaration in which the EU announced

its willingness to establish special relations with Israel. More specifically, the EU-Israeli Action Plan provides for

enhanced political dialogue and co-operation, increased economic integration, enhanced co-operation in justice and home

affairs, greater integration of Israel to EU programmes and schemes, and improved people-to-people interactions.

38 European Neighbourhood Policy, Strategy Paper (2004), COM(2004)373 final (12.5.2004), at 9, 14-15, 16 and 23.

39 Section I of the EU-Jordan Action Plan, http://ec.europa.eu/world/enp/documents_en.htm (2004) (last visited 6 June, 2007).

40 Section I of the Action Plan, http://ec.europa.eu/world/enp/documents_en.htm (2004) (last visited 6 June, 2007).

41 Pages 1-3, 10 of the Action Plan, http://ec.europa.eu/world/enp/pdf/lebanon_enp_ap_final_en.pdf (2004) (last visited 6 June,

2007).

42 Pages 1 the Action Plan, http://ec.europa.eu/world/enp/pdf/action_plans/pa_enp_ap_final_en.pdf (2004) (last visited 6 June,

2007).

8

Recent EU official statements,43 working papers and reports,44 issued under the ENP,

all recognize, albeit in vaguer terms,45 the link between the offer of enhanced trade

and investment relations and legislative and regulatory convergence with the EU:

"Deeper Economic Integration with our ENP partners will be central to the success

and credibility of the policy. From the outset, a key premise of the ENP was that

economic integration should go beyond free trade in goods and services to also

include "behind the border" issues: addressing non-tariff barriers and progressively

achieving comprehensive convergence in trade and regulatory areas (such as technical

norms and standards, sanitary and phytosanitary rules, competition policy, enterprise

competitiveness, innovation and industrial policy, research cooperation, intellectual

property rights, trade facilitation customs measures and administrative capacity in the

area of rules of origin, good governance in the tax area, company law, public

procurement and financial services). The objective would ultimately be that our

partners share a common regulatory basis and similar degree of market access".46

It must be stressed that while the Association Agreements merely refer, in suggestive

language, to approximation of legislation, the ENP goes further than that, by calling

43 See, for example, Hübner (2006).

44 Commission of the European Communities Staff Working Document accompanying the Communication from the

Commission to the Council and to the European Parliament on Strengthening the European Neighbourhood Policy, Overall

Assessment, Brussels 4 December, 2006 SEC(2006) 1504/2, http://ec.europa.eu/world/enp/documents_en.htm, at 5;

Commission of the European Communities Staff Working Document accompanying the Communication from the

Commission to the Council and to the European Parliament on Strengthening the European Neighbourhood Policy,

Sectoral Progress Report, Brussels 4 December, 2006 SEC(2006) 1512/2,

http://ec.europa.eu/world/enp/documents_en.htm, at 2-4; Commission of the European Communities Staff Working

Document accompanying the Communication from the Commission to the Council and to the European Parliament on

Strengthening the European Neighbourhood Policy, ENP Progress Report, Ukraine, Brussels 4 December, 2006

SEC(2006) 1505/2, http://ec.europa.eu/world/enp/documents_en.htm, at 10-14; Commission of the European Communities

Staff Working Document accompanying the Communication from the Commission to the Council and to the European

Parliament on Strengthening the European Neighbourhood Policy, ENP Progress Report, Israel, Brussels, 29 November,

SEC(2006) 1507/2, http://ec.europa.eu/world/enp/documents_en.htm, at 3, all visited on 6 June, 2007.

45 See Magen (2006), at pp. 526-528 who analyzes the gradual softening of EU linkage between approximation of laws and

economic integration under the ENP.

46 Commission of the European Communities Communication from the Commission to the Council and to the European

Parliament on Strengthening the European Neighbourhood Policy, Brussels, 4 December, 2006, COM(2006) 726 final,

http://ec.europa.eu/world/enp/documents_en.htm, at 4-5 (last visited 6 June, 2007).

9

upon the neighbouring countries to approximate their laws, regulatory policies and

standards.

Such an EU legislative agenda should thus be seen as part of the process of external

Europeanization. The EU relies on economic and soft power instruments47 in order to

"export" its values, and thereby to extend its sphere of political, economic and

normative influence. 48

The Middle East is one of the principal regions for such EU activity.49 This region is

afflicted by structural social, political and economic problems, which hamper the

development of democratic values, the protection of human rights, prosperity, and

ultimately the peaceful resolution of conflicts in the Middle East.

Europe is concerned with the prevailing state of affairs in the Middle East, fearing

that political extremism, terrorism, socio-economic unrest, narcotics trafficking, and

illegal immigration in the neighbouring countries may have negative spillovers for

it.50 After all, as the former French Foreign Minister, H. de Charette has noted, "when

violence returns to the Middle East, sooner or later it will show up in Paris".51

Europe too had to face significant political, economic and social problems in the

aftermath of World War Two. The EEC, and then the EC and the EU, served as

effective instruments that enabled Europe to extricate itself from its own problems,

and thereby to become stabilized.

47 Nye (2004), at pp. 75-83.

48 Whitman (1998). See also Aoun (2003), at p. 299: "As the EPC and CFSP developed, the growing economic leverage of

Europe was partly translated into diplomatic tools and it has dedicated itself to the 'exportation' of peace and the promotion

of the principles embodied in the UN Charter…This ambition generally has been served through a wide variety of 'soft'

channels: development programmes, strategic dialogue, free trade association and cooperation agreements, regional

projects…etc.".

49 These include, according to the EU, deficits in governance, marginalisation of women, poor implementation of international

human rights conventions, insufficient independence of legal and judicial systems, low status of non-governmental

organisations, unevenly dispensed education, authoritarianism and poor economic and social performance, EC Commission

(2003), 4.

50 Tocci (2005a); Tocci (2005b); Tanner (2004).

51 Dannreuther (2004), 152.

10

The EU believes that it can draw on its own experience to assist in resolving the

structural problems in the non-EU Mediterranean countries. It wishes to "export" its

successful model pursued under the European integration programme to other parts of

the world, including, in particular, the Middle East.52

The EU perceives legal, socio-economic, and political reforms in the Mediterranean

countries, on the one hand, and economic prosperity and the resolution of the Middle

East conflict, on the other hand, as intertwined. 53

A clear quid pro quo is thus postulated. In return for its willingness to open its

economic gates, under the aegis of the ENP, the EU expects its neighbouring

countries to adopt its basic values, namely peace, the rule of law, democracy, the

protection of human rights, and free market economy. Such adoption requires the

pursuance of reforms, and these reforms entail the approximation of laws and

regulatory practices with the EU acquis.54

In that way the EU intends to use the ENP, in general, and the concept of

approximation of laws, in particular, as an instrument that will promote economic, as

well as social and political reforms in the neighbourhood countries.55 The call for

approximation of laws is thus utilized as one component of the EU's external strategy

of positive conditionality:56 "External Europeanization is…qualitatively different from

intra-EU processes in that, unlike Member States who participate in the creation of the

rules they are expected to comply with, the extraterritorialization of EU rules involves

one-sided alignment by third countries that are excluded from the EU rule-making

institutions".57

52 Bilgin (2004), at p. 34; Prodi (2004).

53 See Magen (2004), at p. 115.

54 For a theoretical analysis of the attempts of the West to "export" Western values, see by analogy, Etzioni (2004). See also

Verheugen, (2004): The closer we move together in our political dialogue, the more we shall be able to do in economic areas as

well.

55 The attempt of a foreign power to conduct social engineering and nation-building campaigns is a multi-faceted task. One

aspect of those tasks is the unification of diverse ethnic groups within a state. Another dimension places emphasis on

improvement in governance by implementing the rule of law, fighting corruption, installing democracy, while a third aspect

focuses on economic construction, see Etzioni (2004), p. 2.

56 For the use of positive conditionality, see Tocci (2005a); Tocci (2005b).

57 See Magen (2006), at p. 498.

11

One of the instruments in the arsenal of the EU used to gain such regional and global

influence is the concept of approximation of laws. European countries can no longer

shift armadas around the globe as they did it in the past. The days of European,

military-backed colonialism are gone, and hopefully are not to return. The EU can, on

the other hand, attempt to export its legal regime, through the concept of

approximation of laws, to its vicinity and beyond, thereby gaining economic influence

and resultant political and normative influence. Put differently, European military

colonialism is Out, soft, enlighten, legal colonialism is In.

As Westbrook contends, the Law is command of the sovereign, and when a sovereign

imposes itself upon people outside its established borders, expands and creates new

subjects, we may speak of imperialism.58 The ENP campaign for approximation of

laws may be perceived in such a manner, because it amounts to a "highly intrusive

demands on national sovereignty through formally de-politicized and legalized

language".59

The legislative pressure exerted by the EU has not gone unnoticed by the non-EU

Mediterranean countries. Let us take for example the case of Israel. Since the

conclusion of the EU-Israel Association Agreement in 1995, Israel has moved in the

direction of EU legislation in certain areas, including standards,60 competition law,61

environmental law,62 animal protection,63 and money laundering legislation.64 The EU

for its part has continued under the ENP to exert further legislative pressure in the

area of provision of services.65

58 Westbrook (2006), at p. 496.

59 Magen (2004), at p. 27.

60 Hadar (2002).

61 See Gal (2001), at p. 1477.

62 See Perez (2003).

63 Harpaz and Frid (2004).

64 See Explanatory Notes of the 2000 money laundering legislation, Number 2809, 1999, 420, at 422. For analysis, see

Herman (2002).

65 See Hoekman (2005), p. 23.

12

It is submitted that any further implementation of the concept of approximation of

laws in the EU-Med context would change the nature of the prevailing legal regimes

of the non-EU Mediterranean countries, including that of Israel, bringing them closer

than ever to that of the EU acquis.

Such consequences may bring the non-EU neighbouring countries much benefit in

trade, economic and other terms, as analysed elsewhere.66 Yet it may have

problematic repercussions in social terms. The Paper is devoted to an analysis of these

repercussions.

4. Harmonisation of Laws, National Identity and Particularism

It is argued that the transplant of EU norms into the Israeli legal system may prove to

be problematic in both normative and practical terms, given the socio-cultural

differences that exist between the EU and Israel.

Admittedly there are some scholars who contend that any legal norm can be

effectively transplanted in any socio-economic and political context. The most

prominent advocate of such a "transferist" Theory is Watson. According to him, the

Law develops by transplantation rather than by creation ex nihilo. Based on his

analysis of various legal norms and systems, including the Ten Commandments and

Roman law, Watson reached the conclusion that the Law may develop far from social

realities, and as such it may be successfully borrowed by other countries where the

relevant socio-economic, political and geographic circumstances are very different

from those of the donor country.67

According to Watson, the Law embodies a clever idea as opposed to any socio-

normative content. It is the scientific creation of a clever law-making-elite, the latter

being concerned with professional solutions to technical-legal problems, and not with

social norms or social change.68 This legal elite, mostly interested in the creation of

66 Harpaz (2006a).

67 Watson (1974).

68 As analyzed by Markovits (2004), at p. 95.

13

the Law and its utilization, treats the Law, its means of creation and its sources, as

autonomous, given, and almost sacrosanct. As such the Law is by and large

autonomous and distinct from the contextual culture and social environment in which

it operates. It has a life and validity of its own, existing and operating by its own

inherent forces, being insulated and distinct from socio-economic change and from

other socio-political institutions.69 As such, a good law, embodying a good idea, is

easily transferable and adaptable to local use by clever professionals in the importing

country, notwithstanding any socio-cultural differences that may exist between the

exporting country and the importing country.

With all due respect, such a formal, detached, technocratic-legalistic treatment of the

Law is unwarranted and is to be dismissed. Law and Society are not two autonomous

institutions. They are inextricably linked.

It was Montesquieu who argued that "the political and civil laws of each nation

should be so closely tailored to the people for whom they are made", and that the Law

is therefore not necessarily transferable: As civil laws depend on political laws

because they are made for one society, it would be well if, when one wants to transfer

a civil law from one nation to another, one examines beforehand whether they both

have the same institutions and the same political right; Otherwise, "…it would be

pure chance if the laws of one nation could meet the needs of another..".70

This approach, which places strong emphasis on the interface between Law and

Society, and which is fearful of "unnatural transplants", was later supported by

Savigny, who developed the concept of volksgeist71 (1814), and by numerous

contemporary scholars, including Kahn-Freund, Small, Northrop, Friedman, Ewald

and Legrand, forming together the "culturalist" camp.

According to them, the Law is a culturally determined artefact, and cannot therefore

be severed from the socio-economic circumstances in which it was originally

69 Watson, as analyzed by Ewald (1995), at pp. 501-503.

70 Montesquieu (1748), Book XXIX, Chapter 13.

71 Savigny (1814).

14

formulated.72 A legal rule is an incorporative cultural form, encoding social

experience; just as culture is a source of identity, so are legal rules, serving as an

instrument that reflects and shapes socio-political identity.73 Culture derives from

historical experience, and so do the forms that culture embraces, such as the Law. 74

The Law changes in response to changes extraneous to it, reflecting the power

relations of society, the working of market forces, the ideology of possessive

individualism, the cunning of weltgeist, the self-interest of the elite, or the political

ideology of the age.75

Legislation is therefore not detached from its social surrounding. It is rather one

manifestation of a nation's socio-economic DNA. Different national attributes,

including endowments, technologies, preferences, institutions and coalition formation,

may legitimately lead to different national legislative and regulatory choices.76

In any event, it must be remembered that the object of diffusion of Law, examined

from the perspective of the donor country, extends beyond legal doctrine to include

styles of thought, ideology, procedures, norms, and institutions.77 In the same vein,

and when examined from the perspective of the receiving country, the Law depends

on interpretation, the latter being based on interpretive assumptions which are

themselves historically and culturally conditioned.78

The concept of Law operating independently from society must therefore be

eschewed. As Legrand convincingly writes, the "legal" cannot be separated from the

"non-legal" reality of society because the two worlds are inextricably linked. The Law

is a social sub-system and can thus never be perceived on its own terms. To penetrate

the "legal", one must appreciate the "social" that underpins it, otherwise the "legal"

literally does not make sense.79

72 Small (2005), pp. 1431-33.

73 Legrand (1996), at p. 57.

74 Legrand (1996), at pp. 56-57.

75 Ewald (1995) at p. 490.

76 Leebron (1996), at pp. 92-93.

77 Twining (2006), at p. 512.

78 Legrand (1996).

79 Legrand (1996).

15

The Law should thus be seen, as the "culturalists" perceive it, as mirroring society.

The Law embodies, in the words of the American Supreme Court Chief Justice Oliver

Wendell Holmes "…the story of a nation's development through many centuries and it

cannot be dealt with as if it contained only the axioms and corollaries of a book of

mathematics".80 The Law is therefore not "….a kingdom unto itself, not as a set of

rules and concepts, not as a province of lawyers alone, but as a mirror of society. It

takes nothing as historical accident, nothing as autonomous, everything as relative and

molded by economy and society…".81

Legal divergence between nations may thus be perceived as a natural barrier that is

inherent in the existence of distinct and different sovereign, socio-political

jurisdictions.82

The "culturalist" argument applies with added force to the Israeli context. The Israeli

society, political sphere and legal system are intimately intertwined. The political

sphere is becoming more and more legalized, while the legal system is increasingly

being politicized. Israeli law reflects society and vice versa. Any importation of legal

norms to the State of Israel should therefore to a significant extent reflect the socio-

political environment in which they are to be absorbed.

Is this the case with the EU acquis and Israeli society? Not necessarily so. Israel does

not in all respects share a common normative, cultural, socio-economic, geo-political

apparatus with the EU.

As demonstrated by Tovias and Del Sarto, Israel, a European country in economic

terms, and an Asian one in geographic terms, is torn, from a psychological and

sociological perspective, between East and West, between Europe, the United States,

and the Orient.83

80 From the first of twelve Lowell Lectures delivered by Oliver Wendell Holmes Jr. on 23 November, 1880,

which were the basis for the Common Law.

81 Friedman (1985), at p. 12.

82 Boodman (1991), at p. 717.

83 Tovias and Del Sarto (2001).

16

Consequently, Israel and most European states have to a certain extent different

cultures, and each of them ascribes different weight to autonomy, egalitarianism and

hierarchy values.84

These special social Israeli features are epitomized in the nature of Israel's legal

system, a mixed system which draws upon components of Jewish, British, German,

American, and to a smaller extent Ottoman laws: "The law of Israel is as full of

contradictions as the society it serves. It is both ancient and young, native and

immigrant, tribal and universal. It is both common law and civil law, yet

fundamentally different from both. It believes it thinks abstractly, but it has no real

codes. It deifies judges but expects them to produce doctrine. It glorifies precedent,

but allows its Supreme Court to produce it in ever-changing three-judge ad hoc

panels. It has no constitution and no meaningful judicial control of primary

legislation, but it constantly pushes its judges into politics. It teaches sophisticated

German legal concepts, in Hebrew, to students who cannot read English. It routinely

expects lawyers to use Jewish law when most of them do not know where to find it. It

is vibrant, aggressive, fiercely independent and confusing".85

Consequently, imported EU legal norms may not at all times neatly fit this evolving

Israeli legal system.86

Those Israelis who oppose the approximation of Israel's laws to those of the EU may

thus argue, with some merit, that those cultural and social differences between the EU

and Israel ought to be reflected in the respective legal environments in which the EU

and Israel operate, and not in a sweeping adoption of EU legal norms.

The proponents of approximation of their laws to those of the EU may take issue with

that line of argument, contending that the EU Member States have made significant

progress towards harmonisation of laws inter se, despite significant social differences.

84 Bardi and Sagiv (2003).

85 Shachar (1995).

86 See, for example, Keridis (2004), at p. 9. Keridis refers to the erosion of the dominance of Israel's European elite and to

the rise of Oriental Jews.

17

Israel is not the only country that has had to adjust her legislation. The United

Kingdom, France, Spain and Portugal, for example, have had to undergo the same

process. Israel is no more "special" than these countries. Thus if Portugal has aligned

her legislation with those of Latvia, Finland and Hungary, they argue, why can't

Israel, like Morocco or Tunisia, pursue the same course of action?87

It is submitted, however, that the latter proposition is not entirely convincing. As

Krasner demonstrates, the current status of the EU has emerged over a period of time

out of complex negotiations designed to deal with specific issues rather than some

effort to conform to a set of rules and norms.88 Portugal thus approximates her laws to

those of other EU Member States through the use of, inter alia, EU directives,

adopted by the Council of Ministers, where Portugal has certain voting rights, and

where decision-making is largely intergovernmental.89 Portugal has therefore some

voice in and resultant influence on the EU legislation process. Moreover, EU

directives are, to a certain extent, sensitive to national sovereignty, diverse national

interests and endowments.90 The process of EU integration may thus be seen as a

partnership of independent states, in which, in our example, Portugal is a partner,

albeit a junior one.91

The process of approximating the laws in the Euro-Med context is, on the other hand,

as analysed above, a paternalistic one, in which the EU attempts to impose European

norms on the Israeli legal system, and where Israel, despite the EU's latest

87 Tovias (2007).

88 krasner (2001), at p. 244.

89 For the discussion of the Council's voting requirements see Craig and De Burca (2003), pp. 153-157. See Article 94 of

the Treaty Establishing the European Community, which provides the legal basis for approximation of laws for the

effective functioning of the Internal Market.

90 See Craig and De Burca (2003), at pp. 114-115.

91 See, for example, Nugent (2006).

18

assertions,92 has virtually no official voice in the legislative process of legal norms

pertaining to her.93

This inability of Israel, like any non-EU Mediterranean country, to fully determine her

own national legislative destiny may result in her failure to ascribe sufficient pride of

place to her national history, identity and particular socio-economic, geo-political,

cultural, and religious characteristics.

Some may fear, for example, that any additional step towards legal integration with

Europe might upset the delicate social balance between Western and Levantine

elements of Israeli society.94

Israel is also very concerned with maintaining her strong Jewish identity. It was Isaiah

who prophesized that "…many peoples shall come, and say: 'Come, let us go up to the

mountain of the LORD, to the house of the God of Jacob; that he may teach us his

ways and that we may walk in his paths'. For out of Zion shall go forth the Law, and

the word of the LORD from Jerusalem".95 The Jewish People was thus promised that

the Law would be "exported" from Jerusalem, not "imported" from Brussels.

The "importation" of the EU norms may, in addition, be incompatible with the

security landscape of the Mediterranean countries and the manner in which they

perceive the concepts of sovereignty, security, territory, borders, and the use of force.

The State of Israel is a fine case in point.96 The EU-Israel Action Plan, for example,

advances the cause of liberalisation of services. Such liberalisation may entail, in turn,

a more liberal regime that regulates movement of service providers. This outcome,

92 See Eneko Landburu, Director General, DG External Relations, "From Neighbourhood to Integration Policy: Are there

Concrete Alternatives to Enlargement?", CEPS Conference, "Revitalising Europe", 23 January, 2006, Brussels, see

http://www.europa.eu.int/comm/world/enp/index_en.htm (last visited on 19 March, 2006). See also European

Neighbourhood Policy, Strategy Paper (2004): "Joint ownership of the process, based on awareness of shared values and

common interests is essential. The EU does not seek to impose priorities or conditions on its partners. The Action Plans

depend, for their success, on the clear recognition of mutual interest..There can be no question of asking partners to accept

pre-determined set of priorities".

93 Aliboni (2004).

94 Tovias and Del Sarto (2001).

95 Isaiah, 2:3.

96 Ben-Israel (2003), at pp. 102-104.

19

may not, however, suit the State of Israel, which is very much concerned with security

considerations.97

Such security concerns were evident in the recent proceedings conducted before the

Israeli Supreme Court regarding the legality of controversial legislation that denied

Israeli Palestinians the automatic right to grant their Palestinian spouses, residing in

the Territories, Israeli citizenship through marriage.98 The majority of the Supreme

Court held that the legislation was constitutional, basing its decision on security

grounds. Deputy President, Justice Cheshin, leading the majority, referred to

European and other international norms governing unification of families, only to

cynically dismiss them as Utopian:

When the opinion of my colleague, President Barak, was placed before me, I gave him my hand and instructed him to lead me in his path. So we walked in paths paved by general principles, at whose summits are basic rights, we crossed the tracks of doctrines, we delved into the rules of particular laws, and, in making our way, our companions were justice, truth, integrity and common sense. Towards the end of the journey we embarked on a ship. When we reached an island in the middle of the ocean, we disembarked and on the quay we were greeted by a friendly man. "Welcome" was the greeting of the affable man. "Our greetings to you", we replied, and added: "We are from Israel, from the Supreme Court of Israel." "And who are you, Sir?" we inquired."My name is Thomas, Thomas Moore. Are there are some who call me Thomas Morose." "Pleased to meet you. And where are we?" we asked. "You are in the State of Utopia", the man replied, and added: "The State of Utopia was founded according to a plan that I outlined in a book that I wrote and whose title is the name of the State. "Utopia, by the way", added the man "the word 'Utopia' is a Greek word, and its translation is "no place". "Interesting, very interesting", we said "and as jurists we would also ask you: what is the legal system that prevails in Utopia? Is it similar to the Israeli legal system?"(Our assumption was, of course, that this wise man knew the Israeli legal system). Mr. Moore smiled and replied: "I'm sorry, but there are profound differences between the two legal systems, and it will take much time for Israel to reach the rank of Utopia. At this time you are fighting for your lives, for the existence of the State, for the ability of the Jewish People to live the life of a community and a state, like all other peoples. The laws of Utopia - in your present-day situation - are not for you. Not yet. Look after yourselves, do your

97 For analysis, see Hirsch, Inbar and Sadeh (1996), at pp. 99-102.

98 HCJ 7052/03 Addaala et al. v. The Minister of the Interior and others, 14 May, 2006 (not yet reported).

20

best, and stay alive". So said the man, without adding more. I then woke up and realized I was dreaming (italics added – G.H.).99

The alignment of legislation with that of the EU may thus not allay Israel's security

concerns. Moreover, such alignment may not be sensitive enough to the particular

Israeli monetary and economic context.

Let us take for example the issue of Israel joining the Euro Zone or linking her

currency, the New Shekel, to the Euro. Subscribing on a unilateral and non-binding

basis to the parameters of the EU Stability Pact may be a wise step for Israel's

economic interests.100 Joining the Euro Zone or linking domestic currency on a

binding basis with the Euro may, on the other hand, be inappropriate for monetary

sovereignty and political reasons, as indicated by David Klein, the former Governor

of the Bank of Israel, and by some of his senior staff.101

Such scepticism regarding Israel's suitability to the Euro Zone applies a fortiori to the

other Mediterranean countries, whose economies and markets are less mature than

that of Israel.102

EU legislation may also be incompatible with the economic makeup of the

Mediterranean countries, and particularly that of Israel. A case in point is in the area

of competition policy. As Michal Gal demonstrates convincingly, the markets of

small economies, such as that of Israel, are usually characterized by certain features

that differentiate them from large markets economies.103 These differences must be

reflected, in her opinion, in the optimal competition policy adopted for the small

economy. Competition policy is applied to remedy certain market imperfections and

failures. An optimal competition policy for a country such as Israel must therefore be

99 Para. 1 of his Opinion, translated by the present author.

100 Reich (2001), at p. 31.

101 For the debate on this issue, see Reich (2001), at p. 31.

102 Escribano (2005), at p. 11. For general analysis, see Hoekman (2005), at pp. 29-30.

103 Gal (2001), at pp. 1444-1449: These include high concentration levels and high entry barriers. Given the scale economies

and high entry barriers, small economies cannot in most cases sustain more than a few competitors in most of their industries.

The prevalence of concentrated markets structures adversely affects price, output and research levels.

21

carefully designed to address the unique imperfections of her economy, including in

particular those stemming from the small size of her market.104

As a corollary, Gal argues that competition paradigms, doctrines, legal presumptions

and models of enforcement prevailing in the large markets of the EU are at times ill-

fitted to the needs of small economies, and must therefore not be superimposed on

them "as is". Any sweeping "importation" of foreign concepts, rules and models

might result in insufficient weight being ascribed to the special features of the small

economy. A cautious approach towards trade-policy-driven harmonisation is therefore

required for a small market economy such as Israel's. Otherwise, the adoption of EU

norms may impose on Israel costs of policy convergence that may outweigh the

benefits stemming therefrom.105

If these conclusions are relevant to the State of Israel, with her advanced economy,

developed technologies, relatively competitive markets and an effective Competition

Authority, they must apply, with added force, as demonstrated by Hoekman and

others, to less mature economies and markets, governed by less effective regulatory

bodies, such as those of Egypt, Jordan or Syria.106

Two qualifications must, however, be attached to our assertion that the Law should

reflect society and that EU legal norms fail to meet that requirement vis-à-vis Israel.

The first caveat relates to the gradual process of Israel's Europeanization. As Tovias

and Gal argued in two recent articles, EU enlargement to the East, the massive

immigration of Russian Jews to Israel, globalisation and technological advance, result

in the fact that the Israeli society and her macro-economic persona are gradually

transforming according to European patterns.107

Strong cultural affinity to Europe is indeed evident at times in Israeli daily live, while

European culture affects Israeli mores. Many Israelis maintain strong cultural ties

104 See Gal (2001), at p. 1452: The smallness of the market exacerbates the primacy of efficiency over other objectives. An

optimal policy for a small market must therefore ascribe greater weigh to efficiency-enhancement considerations.

105 Gal (2001).

106 For general analysis, see Hoekman (2005), at pp. 29-30. For more specific analysis, see Abu-Dalbouh (2005).

107 Tovias (2007); Gal (2007).

22

with Europe and feel strong cultural and ideological affinity with, and admiration for

it. Israel is indeed heavily involved in European cultural and sporting events and

tournaments, such as football, basketball, and the Eurovision contest. Israelis are avid

aficionados of European culture, while European films, music, and theatre, are well-

known and admired by the Israeli public. Europe (particularly Paris and London), has

long been Israel's preferable tourist destination, and numerous European languages

are learned by many Israelis. These close cultural ties are fostered by several cultural

European institutes, situated in Israel, such as the Goethe-Institut, Adenauer-Stiftung,

the British Council and Alliance Franaise.

The acquis might therefore be more suitable now for transplantation into the Israeli

socio-economic and geo-political landscape than it was few years ago.

The second caveat constitutes in fact our chief criticism of the "culturalist" Theory.

The Law should indeed reflect and mirror the society in which it operates. But this

must not be its sole task. It can also constitute, shape and improve a nation's social

DNA. The Law can and should be not only reflective but also transformative, serving

as an engine for reform.

Admittedly EU norms may not perfectly match at all times Israeli social norms, and

as such they may serve as a social reform instrument. After all and as Hiller argues,

transplanted laws carry with them so much imperceptible and incommensurable

cultural "baggage" that the receiving country will inevitably experience far more

internal cultural change than it either realized, intended or would have intended.108

These should not always be seen as negative consequences. After all, in recent years

the Israeli law played a prominent reformative role, conceiving new and better ways

in which Israeli society perceives, for example, gender rights, minority rights and

Palestinian rights. This dramatic enhancement of the role of the Israeli law was seen

to be part of a gradual change of Israeli law and legal education, termed by Mautnar

"the decline of formalism and the rise of values".109

108 Hiller (1978), at p. 434.

109 Mautner (1993).

23

The argument can thus be made that if Israeli law can serve as an engine of reform in

sensitive areas such as gender rights, it can also play an activist role in advancing, for

example, superior EU environmental norms.

5. Harmonisation of Laws, Illegitimacy and Social Opposition

Given the above-analysed social differences between the EU and Israel, any wide-

scale transplantation of EU norms to the Israeli legal system may be perceived in

Israel as illegitimate, thereby raising social opposition.

A. The Concept of Legitimacy

The concept of legitimacy may be seen as a normative belief that a rule or institution

should be obeyed, not due to coercion or self-interest, but due to its inherent

normative strength,110 being perceived as desirable, proper or appropriate within a

socially constructed system of norms, values, beliefs and definitions.111 As Max

Weber contended:

But custom, personal advantage, purely effectual or ideal motives of solidarity do not form a sufficiently reliable basis for a given domination. In addition, there is normally a further element, a belief in legitimacy. Experience shows that in no instance does domination voluntarily limit itself to the appeal to material or effectual or ideal motives as a basis for its continuance…Every such system attempts to establish and to cultivate the belief in its legitimacy.112

Based on that line of thinking, more theorists of international law who belong to the

sociological camp are concerned with the interface between legitimacy and

compliance. 113 By such line of thinking, compliance with social or legal norms can be

achieved not only through coercion or self-interest, but also through legitimacy.114

110 Steffek (2003), at p. 252; Hurd (1999), at pp. 379, 381 and 387; Franck (1990).

111 Suchman (1995), at p. 574.

112 Weber (1978), at p. 213.

113 See the analysis of Hirsch (2004).

114 Hurd (1999), at p. 379.

24

In Hurd's opinion, legitimacy contributes to compliance by providing an internal

reason for an actor to follow a rule. When the rule is perceived by that actor as

legitimate, compliance is no longer motivated by a fear of sanctions or a by

calculation of self-interest, but by an internal sense of moral obligation.115 Yet

aggressive legislative pressures applied by the EU may be perceived in Israel, for the

reasons analysed below, as illegitimate.

B. Approximation of Laws and the (non-) Participatory Democracy

The proximity between the policy-maker and the addressee of the legal norms

constitutes a sign of healthy governance. That verity was recognised by ancient Greek

philosophers,116 by the Church,117 and in more recent times by the EU itself, under the

aegis of the General Principle of Subsidiarity.118

A prerequisite for an effective law is, after all, the existence of legal cultures and

institutions which are receptive to the Law, supported by local constituencies with a

strong interest in the Law:119 "Making decisions on a more local basis has both

substantive and procedural value. The substantive value derives from the ability of a

more local population to implement choices which…better reflect its preferences,

resources and technologies…The procedural value of localism is one of participation,

of having a more meaningful say over the policies that affect one's life, and to

maintain more direct influence over one's government and governmental officials". 120

These propositions are also applicable to our context. The adoption by Israel, as by

other Mediterranean countries, of provisions enacted in Brussels will distance her

citizens from the legislative-making process, thereby running contrary to the aforesaid

principle. Such adoption may also be incompatible with recent attempts to enhance

the role of Israel's civil society in adopting international commitments pertaining to

international trade.

115 Hurd (1999), at p. 387.

116 Aristotle (1957), at pp. 68-76.

117 Poorley (2000), at pp. 14-161.

118 Article 5 of the EC Treaty, as analysed by Estella (2002).

119 Mayeda (2004), at p. 745.

120 See Leebron (1996), at p. 104.

25

The analysis conducted so far indicates that approximation of laws by the non-EU

Mediterranean countries may have problematic social repercussions. These may result

in fierce internal opposition in the non-EU countries, in general, and in Israel, in

particular.

C. Social Opposition

The European legislative campaign, which can be conceptualized under Constructivist

theories of international relations,121 includes components of social engineering and

nation-building.

Such policies pursued by foreign powers are likely to raise internal opposition. After

all, they seek to overcome prevailing social forces and long-established moral and

social cultures, societal structures and traditions, and attempt to undo deeply ingrained

cultural and psychological predispositions, strong emotional ties and religious

beliefs.122

The social opposition that may result from European legislative pressures may be

particularly conspicuous, given the traditional atmosphere of suspicion and scepticism

towards Europe that prevails at times in the Mediterranean non-EU countries.123

In such an environment, an assertive "exportation" of European legal norms may be

perceived in these countries as intellectual parochialism, conventionalism,

paternalism, and even as neo-Imperialism.124

Thus the EU campaign of approximation of laws, in itself, and when examined in its

wider context, namely the attempt to pursue wide-scale reforms in the Mediterranean

121 Constructivism is first and foremost a sociological theory. Contrary to Realism, which focuses on the material world,

Constructivism claims that: "The manner in which the material world shapes and is shaped by human action and interaction

depends on dynamic normative and epistemic interpretation of the material world", see Adler (1997).

122 Etzioni (2004), at p. 4.

123 For general analysis, see Said (1978).

124 See by analogy, Boodman (1991), at pp. 721-723. But compare with Escribano (2005), at p. 4. Escribano contends that

Arab countries will be more willing to accept European intervention, as compared with that of the United States.

26

countries, is likely to encounter significant challenges, complications, and opposition

stemming from the external intervention involved, and the loss of sovereignty

entailed.

These conclusions apply with added force to the State of Israel. Confronted with the

Romans, Crusaders, Turks, British and other foreign powers, the Jewish People

fought hard to gain, maintain and regain sovereignty. The Holocaust convinced the

majority of the international community that the Jewish People needed its own

independent state. It also created in Israel a strong psychological linkage between

nationalism and national survival.125 The creation of the State of Israel in 1948

provided the Jewish People with a homeland, but failed to severe that linkage. Hence,

ancient history and contemporary history have combined to make Israel zealous of her

sovereignty and independence, and resentful of international interference in its

affairs.126

Despite the impressive success of the Zionist movement, some Israelis continue to

suffer from what may be termed the "Massada syndrome"127 and hence from a ghetto

mentality.128 Bold scepticism and mistrust towards international law and organisations

are entrenched in Israel society.

Such a sceptical approach is particularly evident when Europe is seen to be interfering

in Israel's internal affairs. The haunting memories of the Holocaust, the perceived

betrayal of Israel by France on the eve of the Six Days War (1967),129 and the

increasingly antagonist stance taken towards Israeli policies by numerous European

countries, have created in Israel a negative knee-jerk reaction towards most forms of

European intervention.130

As demonstrated elsewhere, the narrative prevailing in wide circles of Israeli society,

as well as in political and academic circles, is that Europe is simply anti-Israeli. The

125 Ben-Israel (2003).

126 Chevallard (2003), at p. 15.

127 In 73 CE the Romans put under siege the Massada fortress, situated close to the Dead Sea, which was settled by the

Hebrews. The odds were against the Hebrews' side and the decision was to fight till the end, including collective suicide.

128 For such an approach see Steinberg (2004).

129 Gera (1992).

130 See Dieckhoff (2005), at pp. 60-61.

27

present author does not always subscribe to such narratives.131 Yet one cannot ignore

them, or their potentially negative impact on Israel's willingness to approximate her

laws to those of the EU.

In such state of affairs, this approximation of Israel's laws and the expected resultant

social changes and loss of sovereignty may reinforce popular, deep-seated prejudices

against European intervention in Israel's internal affairs. Such a process may also

adversely affect the effectiveness of such EU norms in Israel.

6. Rejection of the acquis Transplantation?

Given this interface between national particularism and legal differences, it may thus

be argued that the campaign for approximation of laws can be legitimately and

effectively conducted where a significant degree of historic, social, cultural and

economic commonality exists.132 Any attempt to transplant EU legal norms in a

different socio-economic setting, as in the case of Israel, may prove to be problematic

in terms of social receptiveness and effectiveness.133

A society with a strong sense of the legitimacy of any properly enacted legal norm

will give greater effect to the new law than a society where the legitimacy of the Law

is weak.134 Law addressees are embedded in their specific legal system and hence law

reform requires cooperation of the citizens for it to be effective.135 Where the Law

develops internally through a process of trial and error, innovation and correction, and

with the participation of the users of the Law and the legal profession, legal norms

and institutions tend to be highly effective, but where foreign law is imposed and

legal evolution is external, legal institutions tend to be weaker.136

131 Harpaz (2007a).

132 As, for example, in the early days of the European Economic Community.

133 For support, see Small (2005), at pp. 1431-1433; Kahn-Freund (1974), at p. 27.

134 Miller (2003), at p. 844.

135 Markovits (2004), at pp. 99 and 110.

136 Berkowitz, Pistor and Richard (2003).

28

The transfer of legal norms in different socio-economic and institutional contexts may

create a "transplant effect", the mismatch between pre-existing conditions and

institutions and the transplanted law, which would ultimately weaken the

effectiveness and legitimacy of the imported legislation.137 Law reforms that are

inconsistent with deeply held moral and political beliefs may contradict fundamental

cultural gut reactions and might ultimately be rejected.138

Given the intimate relations between Law and Society, and the different socio-

economic features of the EU and Israel, a wide-scale exportation of EU norms may be

treated in Israel as inappropriate, unwelcomed and ineffective. EU norms, especially

those which are normatively charged, may not be effectively transplanted into the

Israeli legal system.

7. Summary and Conclusions

The European Union has in recent years offered its neighbouring countries in the

Mediterranean enhanced trade, economic and political relations. In return it expects

them to align their legislation, to an extent yet to be determined, with its acquis

communautaire. Such legislative course of action may bring abundant trade,

economic and other benefits for the Mediterranean countries, and yet, as analysed in

this Paper, it may prove to be challenging, complex, problematic, and

disadvantageous, in social terms.

Given these positive trade and political repercussions and negative social

repercussions, the question arises: how should Israel confront the European legislative

pressures?

It is submitted that Israel cannot and should not dismiss the EU's call for

harmonisation of laws. Evolving global and regional realities, Israel's dependence on

European markets, and the EU move towards more assertive treatment of countries

137 Berkowitz, Pistor and Richard (2003), at p. 171.

138 Markovits (2004), at pp. 99 and 110.

29

that do not abide by international norms, render the resistance to European legislative

pressures ill-advised.

The possibility that Israel "shall dwell alone and shall not be reckoned among the

nations" does not represent a viable option. Israel needs regional economic backing.

The implementation of the European Neighbourhood Policy in general, and

approximating her laws with those of the EU in particular, may in fact partially satisfy

that need. Regional cooperation carries with it membership fees, and approximating

Israel's laws to that of the EU, and the resultant erosion of her sovereignty, is part of

that payment.

Yet in light of the above analysed social divergences, Israel should not blindly place

her faith in the concept of approximation of laws to the acquis. Instead she should

treat it cautiously: "Blind without history, jurisprudence without comparative

understanding can scarcely rise above the level of provincial casuistry and empirical

craft".139

Israel should strive to secure the benefits of European regionalisation, without having

to sustain disproportionate losses in terms of her ability to determine her own national

curriculum vitae and her own collective identity.

A selective importation of laws should thus be employed. According to the

econometric analysis conducted by Berkowitz, Pistor and Richard of numerous cases

of legal transplants, a good legal reform strategy should be to carefully choose the

legal rules whose meaning can be understood and whose purpose is appreciated by

domestic law makers, law enforcers, and economic agents, who are the ultimate

consumers of the Law. Legal reforms must ensure that there is domestic demand for

the new norm and that the foreign supply of that norm matches demand.140 Israel

should adopt that reformative course of action.

139 Yntema (1945), at XIII.

140 Berkowitz, Pistor and Richard (2003).

30

The à la carte nature of the European Neighbourhood Policy may serve that purpose.

It would, in principle, allow Israel to choose to adopt some of Internal Market's

regimes, consistent with her own interests and social values (for example, proposed

liberalisation in trading of services), while rejecting, in principle, other components

which might harm those interests and values (for example, the legal obligation to

permit free movement of persons).

In addition, the imported EU norms should be adapted to the climate of Israel.

Berkowitz, Pistor, and Richard above-mention econometric analysis establishes that

the manner in which a country received its laws is an important determinant of the

effectiveness of the Law. Legal transplant thus increases its own receptivity by

making significant adaptation to the local pre-existing formal and informal legal

order.141 For the Law to be effective, a demand for it must exist. If the transplanted

law is adapted to domestic conditions, then the Law will be used. If the law was not

so adapted, or is imposed via colonization, and the population was not familiar with it,

a "transplant effect" may be expected.142 The initial demand for the Law would be

weak, while the legal order will function less effectively.143

Israel should thus avoid the unnecessary "cut and paste" of EU norms, attempting

instead to adjust EU legal norms to her own particular socio-economic landscape. The

following advice offered by Lord Denning is applicable to our context too: "just as

with an English oak, so with the English common law. You cannot transplant it to the

African continent and expect it to retain the tough character which it has in England.

It will flourish indeed but it needs careful tending".144

Other instruments should be employed to temper the adverse social effects stemming

from harmonisation of laws. The principle of Subsidiarity may be one of them. This

requires, in the EU context, that the EU refrain from action where the goals of the

proposed action could be better achieved on a lower level, such as that of the Member

States. The adoption of such a principle in the Euro-Israeli context should be

141 Berkowitz, Pistor and Richard (2003).

142 Berkowitz, Pistor and Richard (2003), at pp. 167 and 174.

143 Berkowitz, Pistor and Richard (2003), at pp. 167 and 174.

144 Nyali, Ltd. v. Attorney-General [1956] 1 Q.B. 16.

31

examined. Under it, Israel should align her legislation with that of the EU only if and

insofar as the objective of the proposed legislative action cannot be sufficiently

achieved by her domestic law, and can therefore be better achieved by adopting EU

legislation.

A cost-benefit analysis may also prove to be useful in that regard. Any proposed area

for approximation of laws must be examined on an ad hoc basis, weighing the trade

and other advantages embodied in such a move, as manifested in the regional and

global fronts, against the likely social costs. Only where such an ad hoc, nuanced

examination indicates that a distinctive overall advantage is likely to result from

aligning one's legislation, should Israel approximate her laws to those of the EU.

Academia, think tanks and industry should contribute to that analysis. Additional

guidance should be sought from the experience of countries that have acceded to the

EU, and that have had to align their statute books with that of the EU. Israel, like

other Mediterranean countries with strong relations with the United States, should

seek to profit from the particular experience of those acceding European countries that

maintain strong trade and social links with both the European Union and the United

States.145

The analysis conducted in this Paper focused on the implications and repercussions of

harmonisation of laws with the EU acquis, examined through the prism of EU-Israel

relations. Indeed, as demonstrated in this Paper, the State of Israel, the historical

background for her creation, the Zionist movement which provided for her ideological

apparatus, her geo-political situation, and her relations with Europe and the United

States, all possess unique features, which merit distinct scholarly treatment. Yet many

of the findings of this Chapter may be applicable, mutatis mutandis, to other countries

in the Mediterranean and elsewhere, facing pressure to approximate their laws to

those of economic powers in divergent socio-economic environments. Further

145 See Hoekman (2005), 30: Mechanism involving voluntary exchange of information and peer review may be a precondition

for governments to identify where formal approximation of laws to those of the acquis may prove to be beneficial. Such

voluntary co-operation may help improve domestic policies and performance. It can also generate information on the size and

distribution of costs and benefits of the status quo and reduce uncertainties stemming from the call to change that status quo

through approximation of laws.

32

research is thus called for in order to determine the precise degree for such

applicability.

33

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