Crime and Criminal Justice in Israel: Assessing the Knowledge Base toward the Twenty-First Century

9 CRIMINAL LAW IN ISRAEL

CHAPTER NINE CRIMINAL LAW IN ISRAEL Mordechai Kremnitzer The Situation at the Time of the Establishment of the State .Athe time of the establishment of the state, the principal legislation in the area of criminal law was the criminal code ordinance of 1936, enacted by the British mandatory legislator and adopted by the Israeli legislator by virtue of the Law and Administration Ordinance, 1948, in the framework of the general absorption of the law that was in force at that time. The historical sources of this ordinance go back to the criminal code ordinance of Queensland from 1899 (which was based, in the main, on the English common law) via a number of intermediate stops, the last of which was the criminal code ordinance of Cyprus from the year 1928 (Abrams, 1972; Shachar, 1979-1980). The ordinance contained a general part in which were the general provisions concerning criminal liability and punishment of the offender. Section 4 of the ordinance stipulated that it be interpreted in accordance with the principles of legal interpretation applying in England, and the concepts therein be interpreted according to their meaning in English law, when such an interpretation was compatible with the context, and subject to specific provisions to the contrary . The ordinance also contained, in its specific part, a large number ofthe common criminal offenses, but not all ofthem. Many offensesand this situation has not, in principle, changed-were scattered 185 186 CRIME AND CRIMINAL JUSTICE throughout different enactments, such as the dangerous drugs ordi nance, defence (emergency) regulations, customs ordinance, income , tax ordinance, intoxicating drinks (production and sale) ordinance . transportation ordinance, work safety ordinance and many others This historical background shows that Israeli criminal law suffers from old age. Not only did the standard of scientifi.c progress differ (see, for example, section 3LO of the penal law, according to which a person should not be regarded as having caused the death of another if the latter died at the end of a year and a day from the date of the criminal act causing 1;he death), but the fundamental . ld also differed ~ principles and concepts in this fi{ Thus, for example, the principle nullum crimen sine culpa was far from being acknowledged or settled, whereas with regard to the need for imposing punishment the main emphasis was placed on nsequence. This is shown by the '‫כ‬ having brought about a harmful c nally did not require any mental ~ offense of causing death, which oril element with regard to the consequence (sections 298, 299 of the penal law). Furthermore, the prillciple of legality was not treated seriously, as can be seen in the offense of public mischief, which is merely defined as "a person who does an act likely to cause a public mischief is liable to ..." (section ]98 of the penal law). The consti tutional background of the criminal code ordinance was also en lte to a penal code in a democratic ~ tirely different from that appropri country like Israel. The crimina:. code ordinance was applied to Palestine by a foreign regime whose main, if not exclusive, concern was to maintain law and order, the rights of the individual not criminal code ordinan.ce was not ~ being its major preoccupation. Th{ an independent legal creation, nor was an attempt made to adapt .) 1979-1980 , it to the local inhabitants or their needs (Shachar At the same time, the crimiIlal code ordinance was far from being monolithic. Against the ba(kground of the rules of the com mon law, which itself did not "suffer" from coherence, the ordinance was strewn in an uncoordinated fashion, and under the "inspira , 1ed with drafting the enactment ‫נ‬ tion" of officials who were concer with statutory provisions from various sources, among them the Italian Criminal Code of 1888, trle Ottoman law that prevailed in Palestine prior to the British m'lndate, the Indian Code (the of fense of causing death by negligence), the Sudanese Code (the r hand there were some surpris ~ defense of necessity). On the oth{ LAW AND LAW ENFORCEMENT 187 ing deletions, such as the dropping of self-defense, which originated in East Africa (Shachar, 1979-1980). In criminal law, and in particular, in the criminal code ordinance , many changes have been introduced since the establishment of the state. Changes in the Criminal Law since the Establishment of the State The most significant and dramatic change found expression in the replacement (involving repeal...