“Researchers in the Field:” A First in Israel – A Book on Private International Law
After an extensive period of research, Faculty member Professor Celia Fassberg is about to publish a book on Private International Law * This is the first comprehensive work on the subject published in Hebrew * We spoke to Professor Fassberg, who told us about the book, the writing process, and her fascination with Private International Law
Professor Fassberg, what is the idea behind the book?
“It is a comprehensive book on Private International Law - a research book, and a reference work. It is a research book in the sense that it proposes a theoretical approach to the field and its problems, and it is a reference work in the sense that it is designed to provide systematic and comprehensive responses to practical questions.”
What is special about the book?
“What’s special is that there is no other book in Israel that encompasses the entire field on both a theoretical and a positive level. There are articles and essays, but there is no comprehensive work. My book seeks to fill this gap. In the theoretical section I try to present the major questions that characterise the field and the components of any legal response to them. For example, in the field of adjudicatory jurisdiction, the main question is: when are Israeli courts authorised to decide a particular case, and why?
Professor Celia Fassberg
I draw on other legal systems and theoretical literature in order to answer this question and to extrapolate the components of the law of jurisdiction: different kinds of jurisdictional factors are used for different kinds of jurisdiction, and the jurisdictional factors are applied to these different types of jurisdiction taking into account a variety of considerations – fairness toward the litigants, efficiency of the proceeding, and so forth - all on the basis of a general systemic approach towards the role of the judge in decisions regarding jurisdiction. A comparative approach reveals these different components and the relationship between them, and suggests how a coherent set of rules can be constructed. The chapters on Israeli law provide a critical and comparative analysis of the rules of Private International Law in Israel in each field of law.”
Can you explain the structure of the book?
“The book is based in part on the leading English work in the field (Dicey, Morris and Collins, The Conflict of Laws), which is updated every few years. It differs from that work in the sense that English legal literature tends to be primarily positivist and descriptive, whereas my book has a strong emphasis on the theoretical and comparative aspects of the field. The book is divided into three sections. The first section is completely theoretical and presents the different branches of Private International Law from a comparative legal perspective. The second section takes an overall look at each of these branches in Israeli law in the light of the theoretical chapters. The third section analyses the Israeli rules of Private International Law in each of the fields of substantive law.”
Why did you choose this particular structure?
“Mainly because there is no comprehensive writing on this subject in Israel that can serve as a basis for examination of the existing rules. Private International Law addresses three separate areas: international adjudicatory jurisdiction; choice of law; and foreign judgments. The first two sections of the book discuss the theory of adjudicatory jurisdiction, the theory of choice of law, and the theory of foreign judgments' law. In these sections I identify the fundamental structure of each field and its different components, and then suggest how they can be combined in a coherent way. The second section examines whether each branch of this field is properly constructed in Israeli law. My conclusion is that this is not the case. The third section takes each field of substantive law and examines the rules of Israeli law regarding international adjudicatory jurisdiction, choice of law, and foreign judgments in that field. This structure offers both an overall theoretical perspective and an analysis of existing law.”
What materials did you use?
“I used English, Swiss, Italian, French, German and sometimes American materials, as well as materials from international conventions – mainly European – in order to illuminate the field.”
Did you identify a specific need in Israel for a book of this kind?
“I think there is a need for a book of this kind in Israel. In the Israeli academic world there is a debate about whether it is worthwhile to write in Hebrew and to write about Israeli law. I believe that it is extremely important to contribute to legal literature in Hebrew and to write critical texts about Israeli law. This is a field that few lawyers understand, it’s a difficult field, and I think it is important to have a basic work of this kind so that we can develop private international law properly. We cannot rely solely on foreign literature. It’s true that we have drawn heavily from English law in this field, but English law is no longer a formal source for Israeli law, and it is no longer suited to that role. Until the 1960s it was possible to draw rules from English law and adapt them to local conditions, but this is no longer possible. We have developed our own unique system, and we have to construct rules of Private International Law that are adapted to it.”
What process is involved in publishing a book of this kind?
“This is a huge project that I have been working on intensively for many years, first on the conceptual level and in research and then in writing. It is a project that I could only work on after many years of teaching and research. This is a field that takes a long time to learn since it has three distinct branches, it applies to all areas of private law, and it requires frequent reference to comparative law. For example, in order properly to evaluate any given case we need to know whether it is possible to sue in another country, and what law would apply there. In other words, we need to take other countries' legal systems into account and ask how they would approach the problem, and why. It’s only in the last few years that I have reached a point where I feel I can see the field in its entirety. Even so, while I was writing the book I realized how much I do not know and I learned a lot. It has been a fascinating process of learning and I really enjoyed it, although the last year – the technical preparation of the book for printing – was extremely difficult.”
Is there any aspect or chapter in the book that you feel particularly close to or that is of special interest to you?
“It’s hard to say. I wrote a book about foreign judgments in the past, and that’s an area I have always loved. In this book I constructed the chapters on foreign judgments differently. It was an interesting challenge to present the material anew and without repeating myself. I have also always loved the field of choice of law. I was never particularly interested in problems of adjudicatory jurisdiction, but once again the process of writing the book helped me come to appreciate how fascinating they can be. It was always clear to me that choice of law and foreign judgments raise fascinating questions. Our attitude towards foreign law reflects in part our attitude towards domestic law and towards law in general, and our attitude towards foreign judgments reflects our approach to litigation and judicial decision-making, as well as towards the character of domestic decisions. I was happy to discover that the field of international adjudicatory jurisdiction also raises ‘big’ questions. For example, how do we regard the role of the state in litigation and the realization of rights, and how do we perceive law? In the field of jurisdiction, we ask why the state takes jurisdiction to decide a given case; what connection is required and what connection is sufficient to justify it in doing so? These rules must also reflect the way we think about law, about the state, about relations between the state and the individual – whether local or foreign – and about the relations between states.
People tend to belittle procedural law, but it is the heart of any legal system; it reveals the way we understand what law is and what rights are. I don’t like it when people say that Private International Law is procedural law, because this isn’t the case. But it does share with procedural law this fascinating quality: it expresses fundamental attitudes towards the essential nature of law in any system.”
Lastly, why private international law?
“Apart from the complexity of the field, what is special about it is that it highlights the relative character of law. It shows that you can never simply declare ‘I have a right.’ The existence of a right depends on the perspective from which you are speaking. You might have a right in Israel under Israeli law, but in Germany they might not recognize this right, or they might recognize it in a slightly different way. Private international law is a kind of legal ‘theory of relativity,’ and to me it is the most exciting and challenging field of law.”