January 3, 1964
Obsolete System of Land Laws
By Eugen Mayer
DINEI KARKAOT BE-MEDINAT ISRAEL דיני קרקעות במדינת ישראל
(The Land Laws in the State of Israel)
By Moshe Doukhan
.Supplement for the years 1953-1963, by Leah Doukhan-Landau. 479 pp
Five years after the death of Dr. Moshe Doukhan, his magnum opus has been brought up to date by Mrs. Lea Landau, who was trebly qualified for the task: as the author's daughter, a lawyer, and the wife of a judge.
The late Dr. Doukhan, under the Mandate assistant Director of the Lands Department and lecturer at the Law classes, was the acknowledged authority on our land laws. In an easy, and at times almost conversational style, his pioneering treatise, first published in 1925 and revised in 1953, covers the origins and the gradual evolution of the laws and the jurisdiction concerning landed property under the Mandate and in the first years of the State. With its scholarly and very detailed treatment of a vast and complicated subject, the book has become a standard work, indispensable to both students and practitioners of law.
Unlike our criminal law, where the Ottoman code was replaced in 1936, our civil law retains much of the 1,800 odd provisions of the "Mejelle", and our land laws in particular are still largely based on that source and on the Ottoman Code of 1858, with its particular distinction of categories and property. Terms such as Mulk, Miri, Matruka, Meivat, and Wakf have become part and parcel of our legal parlance, as well as of real estate transactions, and "Tabu" is still much more familiar than "Land Registry".
Much of this body of laws has become obsolete, notably the diversity of ownership with the resulting problems of transfer and inheritance. In a recent judgment of the Supreme Court it was pointed out that restriction on the freedom to dispose of one's property, such as in the existing laws on succession in Miri land, are no longer acceptable. In this connection, it is not without interest to compare the concept of land owned by the sovereign or the government, as described in the second chapter of Doukhan's work, with the biblical principal (Lev. 25, 23): "The land shall not be sold for ever, for the land is mine", which anticipated by more than 3,000 years modern theories of land reform, but seems not always to be remembered by the Government of Israel. However, it is welcome news that an overhaul of this whole system of law is at present under consideration, and it is to be hoped that attention will also be paid to certain untenable features of tenant protection and property taxation.
Mrs. Landau's work, though almost as voluminous as the original, is not a revised edition, but, as the subtitle says, a complement of the 1953 second edition. Closely following the structure of Dr. Doukhan's treatise, all new enactments are listed and, chapter by chapter, all relevant decisions in civil appeal and High Court cases are summarized. The completeness of the compilation and the meticulous method of assembling and presenting the material make this a reliable and convenient work of reference for which all those concerned with the administration of the land laws will be grateful.