SOME REFLECTIONS ON THE ISRAELILEGAL SYSTEM AND ITS JUDICIARY Aharon bars Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any source. Readers are permitted to make copies, electronically or printed, for personal a G form, printed, electronic or othenwise, except for reasonable quoting, clearly indicating the classroom use 1. History Until the end of World War I, for four hundred years Palestine had been part of the Ottoman Empire. Ottoman law was basically Moslem religious law, but it has steadily been influenced as of the nineteenth century -by European law(French, Swiss, Austrian). As part of the capitulation, some religious autonomy was given to the non-Moslem community. They were granted the right to have their own courts and their own laws in matters of personal status. At the end of World War I, Palestine was conquered by the british army. It became a British Mandate under the League of Nations. This status was continued until Israels independence in 1948. Thus, for more than thirty years Palestine has been under English legal influence Most of the statutes enacted during that period were copied- sometimes verbatim-from parallel British or other commonwealth statutes. The principles of English common law (including the doctrines of equity) were applied whenever there was a gap(lacuna)in the local law In 1948 Israel gained independence. In order to prevent a vacuum, the two previous layers of law -the Ottoman and the English- continued to be in force, subject to the new developments. The fifty-two years of Israel's independence -in terms of its legal development-may be divided into three main periods. The first period covers the fifties. We just emerged from the War of Independence, in which 1 percent of the population was killed A wave of Jewish immigration swept the country. We were 600,000 in 1948, and two million in 1952. From the legal point of view, it was a period of stabilization. Many statutes concerning social security and labor relations were enacted The Law of Return was enacted Parliament decided not to draft a constitution, but to prepare Basic Laws-each to be a chapter in the future constitution. The main changes started to take place in the second period the sixties, seventies, and eighties. Three main trends took place. First, our Constitution started to take shape. Nine Basic Laws were enacted during that period. Second, the large enterprise of codification of private law took place. More than twenty statutes were enacted each of a codifying nature -that covered most of the areas of private law(exclud ing family law, commercial law, and labor law ) Almost all of the Ottoman laws were abolished This codification lacked a unified concept. It was enacted through separate statutes, lacking any effort at harmonization. The legislature looked for good pragmatic solutions, not for a solid analytical basis. The cod if ication was influenced by both European and common law ideas. It has its own original solutions. It worked well. At the end of that period, the formal link to English common law was abolished. A statute was enacted in 1980, provid ing that gaps in the 'President of the Supreme Court ofIsrael. This lecture was delivered at the Fifth Conference of the lus Commune Research School, Leuven, 23 Novem ber 2000
SOME REFLECTIONS ON THE ISRAELI LEGAL SYSTEM AND ITS JUDICIARY Aharon Barak1 Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. 1. History Until the end of World War I, for four hundred years Palestine had been part of the Ottoman Empire. Ottoman law was basically Moslem religious law, but it has steadily been influenced - as of the nineteenth century - by European law (French, Swiss, Austrian). As part of the capitulation, some religious autonomy was given to the non-Moslem community. They were granted the right to have their own courts and their own laws in matters of personal status. At the end of World War I, Palestine was conquered by the British Army. It became a British Mandate under the League of Nations. This status was continued until Israel’s independence in 1948. Thus, for more than thirty years Palestine has been under English legal influence. Most of the statutes enacted during that period were copied - sometimes verbatim - from parallel British or other commonwealth statutes. The principles of English common law (including the doctrines of equity) were applied whenever there was a gap (lacuna) in the local law. 1President of the Supreme Court of Israel. This lecture was delivered at the Fifth Conference of the Ius Commune Research School, Leuven, 23 November 2000. In 1948 Israel gained independence. In order to prevent a vacuum, the two previous layers of law - the Ottoman and the English - continued to be in force, subject to the new developments. The fifty-two years of Israel’s independence - in terms of its legal development - may be divided into three main periods. The first period covers the fifties. We just emerged from the War of Independence, in which 1 percent of the population was killed. A wave of Jewish immigration swept the country. We were 600,000 in 1948, and two million in 1952. From the legal point of view, it was a period of stabilization. Many statutes concerning social security and labor relations were enacted. The Law of Return was enacted. Parliament decided not to draft a constitution, but to prepare Basic Laws - each to be a chapter in the future constitution. The main changes started to take place in the second period - the sixties, seventies, and eighties. Three main trends took place. First, our Constitution started to take shape. Nine Basic Laws were enacted during that period. Second, the large enterprise of codification of private law took place. More than twenty statutes were enacted - each of a codifying nature - that covered most of the areas of private law (excluding family law, commercial law, and labor law). Almost all of the Ottoman laws were abolished. This codification lacked a unified concept. It was enacted through separate statutes, lacking any effort at harmonization. The legislature looked for good pragmatic solutions, not for a solid analytical basis. The codification was influenced by both European and common law ideas. It has its own original solutions. It worked well. At the end of that period, the formal link to English common law was abolished. A statute was enacted in 1980, providing that gaps in the
law should be filled by analogy, and in its absence by reference to the principles of liberty, justice, equity, and peace of Israels heritage. Third, the Israeli judiciary started to develop its own common law -common law Israeli style. Large parts of Israels laws are the product of Israel common law(e.g, administrative law, evidence, compensation) The third period started with the nineties. In the public law sphere, two additional Basic Laws were enacted, dealing with human rights. They constitute our Bill of Rights. In the private phere a new effort of unifying and modernizing our codification took place. a committee chaired by myself, finished its report. We prepared a new and modern Civil Code, which will be presented soon to our Parliament. This period was also marked by very important developments instigated by our judiciary. We decided that all the basic Laws are the supreme law of the land and that there is judicial review of legislation in light of the Basic Laws. w have done so, in spite of the fact that there is no supremacy clause in the Basic Laws, and gainst a line of cases that provided that until the unification of the basic Laws into a constitution, the Basic Laws should be viewed as regular statutes. With these judgments,a whole process of constitutionalization of our law started. All statutes are interpreted in light of the new balance between the individual and society, as provided in our Bill of Rights 2. Characteristics Israels legal system is part of Western legal culture. The state's ideology is governed by the rule of law; the basic approach is secular, liberal, and rational. The social system aspires to solve problems by means of law and the courts; law is understood as a concept that ensures social progress and change. The individual has rights as well as obligations the secular legislator. Its scope is limited. It applies basically to questions of marriage any om Religious law-Jewish, Moslem, Druze, and Christian- is positive law. Its force comes fror divorce, which are adjudicated by religious courts. In other family matters, it applies only if all parties concerned agree. Questions of marriage and divorce are subject to private international law. Thus, nonreligious marriages performed outside Israel, will be recognized by the civil - though not by the religious-courts. There is no state religion, and religious law does not apply outside family law This state of affairs is subject to great concern at home. The religious people think it is not enough. Secular people-who constitute more than three-quarters of the population -think it is too much. This situation continues for political reasons. It creates many difficult problems It violates human rights, as there is no civil marriage or civil divorce. It is a question we shall have to solve soon, mainly because of the Russian immigration to Israel. Over the last ten years, more than one million people from Russia came to Israel under the Law of Return. a third of them are not Jewish. Interreligious questions are coming up more and more 3. A mixed jurisdiction Within the Western legal culture, to which legal trad itions do we belong? We have some Roman-German influences. Our cod ification is basically a civil law codification. It is influenced by civil law ideas-good faith, abuse of right, etc. a judge's power to fill gaps in statutes also originates from the civil law trad ition however we cannot be classified as having a civil law trad ition We are much closer to the common law trad ition than to the civil
law should be filled by analogy, and in its absence by reference to the principles of liberty, justice, equity, and peace of Israel’s heritage. Third, the Israeli judiciary started to develop its own common law - ‘common law Israeli style.’ Large parts of Israel’s laws are the product of Israel common law (e.g., administrative law, evidence, compensation). The third period started with the nineties. In the public law sphere, two additional Basic Laws were enacted, dealing with human rights. They constitute our Bill of Rights. In the private sphere, a new effort of unifying and modernizing our codification took place. A committee, chaired by myself, finished its report. We prepared a new and modern Civil Code, which will be presented soon to our Parliament. This period was also marked by very important developments instigated by our judiciary. We decided that all the Basic Laws are the supreme law of the land, and that there is judicial review of legislation in light of the Basic Laws. We have done so, in spite of the fact that there is no supremacy clause in the Basic Laws, and against a line of cases that provided that until the unification of the Basic Laws into a constitution, the Basic Laws should be viewed as regular statutes. With these judgments, a whole process of constitutionalization of our law started. All statutes are interpreted in light of the new balance between the individual and society, as provided in our Bill of Rights. 2. Characteristics Israel’s legal system is part of Western legal culture. The state’s ideology is governed by the rule of law; the basic approach is secular, liberal, and rational. The social system aspires to solve problems by means of law and the courts; law is understood as a concept that ensures social progress and change. The individual has rights as well as obligations. Religious law - Jewish, Moslem, Druze, and Christian - is positive law. Its force comes from the secular legislator. Its scope is limited. It applies basically to questions of marriage and divorce, which are adjudicated by religious courts. In other family matters, it applies only if all parties concerned agree. Questions of marriage and divorce are subject to private international law. Thus, nonreligious marriages performed outside Israel, will be recognized by the civil - though not by the religious - courts. There is no state religion, and religious law does not apply outside family law. This state of affairs is subject to great concern at home. The religious people think it is not enough. Secular people - who constitute more than three-quarters of the population - think it is too much. This situation continues for political reasons. It creates many difficult problems. It violates human rights, as there is no civil marriage or civil divorce. It is a question we shall have to solve soon, mainly because of the Russian immigration to Israel. Over the last ten years, more than one million people from Russia came to Israel under the Law of Return. A third of them are not Jewish. Interreligious questions are coming up more and more. 3. A mixed jurisdiction Within the Western legal culture, to which legal traditions do we belong? We have some Roman-German influences. Our codification is basically a civil law codification. It is influenced by civil law ideas - good faith, abuse of right, etc. A judge’s power to fill gaps in statutes also originates from the civil law tradition; however, we cannot be classified as having a civil law tradition. We are much closer to the common law tradition than to the civil
law trad ition. We do recognize an Israeli common law. The role of judge-made law in Israel and the role of judges in our society-is typically common law. We have the rule of precedents. Judgments of the Supreme Court bind any court but the Supreme Court. Our jud icial system has a pyramidal structure -with one Supreme Court. We write judgments as a common law court does. The judgments are personalized; there are majority, minority, and concurring opinions. At times, the jud gments are very long and detailed They provide extended reasons for the judgment. The main common law legal institutions, like trust and equitable rights Israeli-style, are recognized. Our jurisprudence-the Methodenlehre common lavish. It is adopted by our jud ges to serve our needs. It is created and changed mainly by the judiciary. It creates, of course, many problems. In normal circumstances, doctrine precedes, and gives rise to legislation and judicial decisions. In Israel, the process is the reverse. The legal plant creates the ground from which it blossoms With all the influences of the common law, we are not a purely common law country. What are we? To which family do we belong? Are we legal orphans? It seems to me that we belong to the legal system of mixed juris ictions. Other members of our family are, inter alia Quebec(French and English influences), Scotland( French and English), Louisiana(french and American), South Africa(Roman-Dutch and English), Sri-Lanka(Roman-Dutch and English), and Cyprus(Greek and English) Legal systems of mixed jur d ictions are a recognize d phenomenon, though not enough research has been done on their common behavior; however, with all their similarities, they cannot be grouped into a single family. Their legal style is different; they lack a common history. Thus, though Israel belongs to the Western legal culture, we do not belong solely to the commonly accepted families of Western legal culture. We have our own style, which is similar to but different from the common law family. Let me describe some of our peculiarities 4. a Jewish and democratic state Our Bill of Rights- Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation-provides: The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a basic law the values of the state of israel as a Jewish and Democratic State The values of the State of Israel as a democratic state have two aspects, a formal aspect and a substantial aspect. The formal aspect-the formal democracy -means free elections and Judiciary,separation of powers, and human rights. Too often many people-includ lp? majority rule; the substantial aspect-the substantial de politicians-refer to democracy only in its formal aspect. This is regrettable. When the democracy without human rights. Of course, different democracies may have differentno majority takes away human rights from the minority, this is against democracy. There is no concepts of human rights, or separation of powers, or the independence of the judiciary. Thus in shaping our understanding of the values of the State of Israel as a democratic state, all those different concepts will be taken into account What do we mean by the values of the State of Israel as a Jewish state? And what is th relationship between the values of Israel as a democratic state and a Jewish state? The values of the State of israel as a jewish state mean two things: first israel as zionist
law tradition. We do recognize an Israeli common law. The role of judge-made law in Israel - and the role of judges in our society - is typically common law. We have the rule of precedents. Judgments of the Supreme Court bind any court but the Supreme Court. Our judicial system has a pyramidal structure - with one Supreme Court. We write judgments as a common law court does. The judgments are personalized; there are majority, minority, and concurring opinions. At times, the judgments are very long and detailed. They provide extended reasons for the judgment. The main common law legal institutions, like trust and equitable rights Israeli-style, are recognized. Our jurisprudence - the Methodenlehre - is common lawish. It is adopted by our judges to serve our needs. It is created and changed mainly by the judiciary. It creates, of course, many problems. In normal circumstances, doctrine precedes, and gives rise to legislation and judicial decisions. In Israel, the process is the reverse. The legal plant creates the ground from which it blossoms. With all the influences of the common law, we are not a purely common law country. What are we? To which family do we belong? Are we legal orphans? It seems to me that we belong to the legal system of ‘mixed jurisdictions.’ Other members of our family are, inter alia, Quebec (French and English influences), Scotland (French and English), Louisiana (French and American), South Africa (Roman-Dutch and English), Sri-Lanka (Roman-Dutch and English), and Cyprus (Greek and English). Legal systems of mixed jurisdictions are a recognized phenomenon, though not enough research has been done on their common behavior; however, with all their similarities, they cannot be grouped into a single family. Their legal style is different; they lack a common history. Thus, though Israel belongs to the Western legal culture, we do not belong solely to the commonly accepted families of Western legal culture. We have our own style, which is similar to but different from the common law family. Let me describe some of our peculiarities. 4. A Jewish and democratic state Our Bill of Rights - Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation - provides: ‘The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and Democratic State.’ The values of the State of Israel as a democratic state have two aspects, a formal aspect and a substantial aspect. The formal aspect - the formal democracy - means free elections and majority rule; the substantial aspect - the substantial democracy - means an independent judiciary, separation of powers, and human rights. Too often many people - including politicians - refer to democracy only in its formal aspect. This is regrettable. When the majority takes away human rights from the minority, this is against democracy. There is no democracy without human rights. Of course, different democracies may have different concepts of human rights, or separation of powers, or the independence of the judiciary. Thus, in shaping our understanding of the values of the State of Israel as a democratic state, all those different concepts will be taken into account. What do we mean by the values of the State of Israel as a Jewish state? And what is the relationship between the values of Israel as a democratic state and a Jewish state? The values of the State of Israel as a Jewish state mean two things: First, Israel as Zionist
state. It means that the raison d'etre of Israel is to solve the Jewish problem by creating a state to which every Jew has a right to come. It is expressed by the law of return (1950), which provides that every Jew(and his non-Jewish family) has the right to enter Israel and to become Israeli citizens. Second. Israel as a Jewish heritage state This does not mean faith in God but that Jewish values, of different levels of abstraction, and the Jewish heritage, are part of our basic values There is. of course. a tension between the values of the State of israel as a Jewish state and its values as a democratic state. We should not intensify these contrad ictions. We should find synthesis between the conflicting values. A good example is Israel's attitude toward the non-Jews in israel. Out of more than six million citizens. more than a million are non-Jews Moslems, Christians, and Druze. A non-Jew has no right to immigrate to Israel. He has to be nationalized. This reflects Israel as a Jewish state. But in Israel itself, all are equal. Jew and non-Jew should have full and equal rights. True, a special key to enter the home was given to Jews and their families as Israel was established to solve the Jewish problem; however, once the individual is inside the house, he enjoys the same rights as every other member of the house. There is no d incrimination among the members of the house In a great number of cases, the Israeli Supreme Court expressed this principle. Recently, I delivered a judgment which we pronounced that the state must treat Jews and Arabs equally in the allocation of state land. We were criticized that that decision would be the end of Zionism. nothing could be more false. Zionism is not based on d iscrimination between Jews and arabs. Zionism views Israel as a national home for Jews: however. it is based on the negation of racism. and on concepts of equality 5. State and church Israel has no ' official religion The Jewish religion is not a state religion however. unlike most legal systems of the Western legal culture, we do have a duality of civil and religious law. It was inherited from the Ottoman trad ition. By it, questions of personal status(mainly marriage and divorce)are adjudicated by religious courts that apply religious law. Thus, we do not have civil marriage or civil divorce. Furthermore for political reasons, there ar statutes that enforce some religious beliefs. For example, in some cities there is no transportation on the Sabbath. All state facilities- like the army -keep kosher. There is no separation of state and church. The state provides religious services for those who need it. All this creates many tensions in our society. It is a time bomb that, if not dealt with properly, may have severe consequences 6.A quasi-presidential system Our political system is peculiar. As far as elections to the 120-seat Parliament are concerned, we have the proportional system. All Israel is one district. Every 30,000 or so citizens can elect one Member of Parliament. It tends, of course, to encourage the existence of many political parties. In the current Parliament, seventeen parties are represented. There is a very low threshold requirement: Ipercent. Unlike in a parliamentary system, Parliament does not elect the Prime Minister. The Prime Minister is elected -like a president in a presidential system-directly by the people; however, unlike in the presidential system, our Parliament may -by vote of no confidence of 61 members or more - oust the Prime Minister and his government from office. In such a case, there are new elections, both for Parliament and for
state. It means that the raison d’être of Israel is to solve the Jewish problem by creating a state to which every Jew has a right to come. It is expressed by the Law of Return (1950), which provides that every Jew (and his non-Jewish family) has the right to enter Israel and to become Israeli citizens. Second, Israel as a Jewish heritage state. This does not mean faith in God but that Jewish values, of different levels of abstraction, and the Jewish heritage, are part of our basic values. There is, of course, a tension between the values of the State of Israel as a Jewish state and its values as a democratic state. We should not intensify these contradictions. We should find a synthesis between the conflicting values. A good example is Israel’s attitude toward the non-Jews in Israel. Out of more than six million citizens, more than a million are non-Jews - Moslems, Christians, and Druze. A non-Jew has no right to immigrate to Israel. He has to be nationalized. This reflects Israel as a Jewish state. But in Israel itself, all are equal. Jew and non-Jew should have full and equal rights. True, a special key to enter the home was given to Jews and their families as Israel was established to solve the Jewish problem; however, once the individual is inside the house, he enjoys the same rights as every other member of the house. There is no discrimination among the members of the house. In a great number of cases, the Israeli Supreme Court expressed this principle. Recently, I delivered a judgment in which we pronounced that the state must treat Jews and Arabs equally in the allocation of state land. We were criticized that that decision would be the end of Zionism. Nothing could be more false. Zionism is not based on discrimination between Jews and Arabs. Zionism views Israel as a national home for Jews; however, it is based on the negation of racism, and on concepts of equality. 5. State and church Israel has no ‘official religion.’ The Jewish religion is not a state religion; however, unlike most legal systems of the Western legal culture, we do have a duality of civil and religious law. It was inherited from the Ottoman tradition. By it, questions of personal status (mainly marriage and divorce) are adjudicated by religious courts that apply religious law. Thus, we do not have civil marriage or civil divorce. Furthermore, for political reasons, there are statutes that enforce some religious beliefs. For example, in some cities there is no transportation on the Sabbath. All state facilities - like the army - keep kosher. There is no separation of state and church. The state provides religious services for those who need it. All this creates many tensions in our society. It is a time bomb that, if not dealt with properly, may have severe consequences. 6. A quasi-presidential system Our political system is peculiar. As far as elections to the 120-seat Parliament are concerned, we have the proportional system. All Israel is one district. Every 30,000 or so citizens can elect one Member of Parliament. It tends, of course, to encourage the existence of many political parties. In the current Parliament, seventeen parties are represented. There is a very low threshold requirement: 1percent. Unlike in a parliamentary system, Parliament does not elect the Prime Minister. The Prime Minister is elected - like a president in a presidential system - directly by the people; however, unlike in the presidential system, our Parliament may - by vote of no confidence of 61 members or more - oust the Prime Minister and his government from office. In such a case, there are new elections, both for Parliament and for
the Prime Minister. The rationale of this peculiar system was to weaken the small parties, and to strengthen the stability of the government. Many think that this original system failed, and that we should go back to the pure Parliamentary system 7. Codification One of our main characteristics is our present law is the codification of civil law. It is spread over more than 20 statutes. We have by now finished -more than 15 years of work-a new draft of our Civil Code. It will not include commercial law, family law, or labor law In the trad ition of a civil code. it is not detailed it does not include ad ministrative or criminal aspects. Consumer protection legislation is also excluded The general part includes some general concepts, e.g. good faith, and the idea that he who wronged should not benefit from his wrongdoing. These general concepts will apply throughout the whole Code. We have a general provision as to the purpose of the Code. Such a provision should serve merely for interpretive purposes. The purpose of the Code is 1. to protect human rights 2. to achieve justice and honesty; 3. to further security, certainty, and efficiency 4. to create harmonization in the civil law 5. to protect vested rights 6. to protect reasonable expectations and reliance interest 7. to achieve reasonable result Generally, the Code is based on a number of substantive principles, such as the autonomy of the private will, protection of the reliance interest, the good faith principle, and the precedence of substance over form We have added a chapter dealing with juristic acts -a continental concept unknown to most of our lawyers We have added a special chapter on remedies. It combines remedies for breach of contracts, torts and violation of statutes We have an interesting chapter about frustration, which includes force majeure and change of circumstances We have a special chapter about confidential relations, includ ing obligations not in conflict of interest. It applies to all such relations throughout the Code In torts, we have opted for a mixed solution. There are only two main torts-negligence and breach of statutory duty. Then there is a list of some ten civil wrongs(like trespass, nuisance, conversion), which are only examples of negligence. There is a special regime as to liability in torts of public officials. They will have immunity unless they acted maliciously. the state (as such and vicariously) is liable for any tort(including negligence)of its employees A special chapter deals with the question of conflict between rights on the same subject
the Prime Minister. The rationale of this peculiar system was to weaken the small parties, and to strengthen the stability of the government. Many think that this original system failed, and that we should go back to the pure Parliamentary system. 7. Codification One of our main characteristics is our present law is the codification of civil law. It is spread over more than 20 statutes. We have by now finished - more than 15 years of work - a new draft of our Civil Code. It will not include commercial law, family law, or labor law. In the tradition of a civil code, it is not detailed. It does not include administrative or criminal aspects. Consumer protection legislation is also excluded. The general part includes some general concepts, e.g. good faith, and the idea that he who wronged should not benefit from his wrongdoing. These general concepts will apply throughout the whole Code. We have a general provision as to the purpose of the Code. Such a provision should serve merely for interpretive purposes. The purpose of the Code is: 1. to protect human rights; 2. to achieve justice and honesty; 3. to further security, certainty, and efficiency; 4. to create harmonization in the civil law; 5. to protect vested rights; 6. to protect reasonable expectations and reliance interests; 7. to achieve reasonable results. Generally, the Code is based on a number of substantive principles, such as the autonomy of the private will, protection of the reliance interest, the good faith principle, and the precedence of substance over form. - We have added a chapter dealing with juristic acts - a continental concept unknown to most of our lawyers. - We have added a special chapter on remedies. It combines remedies for breach of contracts, torts, and violation of statutes. - We have an interesting chapter about frustration, which includes force majeure and change of circumstances. - We have a special chapter about confidential relations, including obligations not in conflict of interest. It applies to all such relations throughout the Code. - In torts, we have opted for a mixed solution. There are only two main torts - negligence and breach of statutory duty. Then there is a list of some ten civil wrongs (like trespass, nuisance, conversion), which are only examples of negligence. There is a special regime as to liability in torts of public officials. They will have immunity unless they acted maliciously. The state (as such and vicariously) is liable for any tort (including negligence) of its employees. - A special chapter deals with the question of conflict between rights on the same subject