¹ In connection with the principle of the completeness of the legal system and the controversy surrounding it, see Tedeschi, , Studies in Israel Law, Jerusalem, 1960, p. 166et seq.Google Scholar

² As an example we can point to the doctrine of patria potestas in the ancient Roman law, which granted the father full control over his children, both physically and also with regard to their property, as contrasted with the widespread intervention of public and private law in the relationship between parents and children in modern times.

³ Cf. Witkon, , “Justiciability”, (1966) 1 Is.L.R. 40et seq.Google Scholar, which discusses the borderline in public law separating a legal decision from a political one.

⁴ (1966) (I) 20 P.D. 204.

⁵ (1966) (II) 20 P.D. 281.

⁶ We are here considering awards or disqualifications made by adjudicating bodies, whose assessment has been sought by the petitioning candidate, as distinguished from the criticism of public appearances, works of art, etc. levelled without the critic being asked to act as he did by the criticised party. This latter criticism is justiciable under the doctrine of fair comment. Cf. Gatley on Libel and Slander, (6th ed., 1967), London, p. 317 et seq.

⁷ (1864) 10 L.T. 403 Cf. also R. v. Senate of the University of Aston and others (1969) 2 All E.R. 964. In the case of University of Ceylon v. Fernando (1960) 1 All E.R. 631, the Privy Council refused to intervene in regard to the regulations of an academic institution prescribing the disciplinary powers to be exercised against a student so long as the principles of natural justice were observed.

⁸ It has been recognised that ideological dislike can serve as a basis for the rejection of justiciability. Cf. Suleiman Balan v. Minister of Agriculture and others, (1968) (I) 22 P.D. 617, where the court was asked to intervene in the case of the refusal of the competent authorities to grant a hunting licence: “the killing of animals for the purposes of sport is not one of the matters where the court considers itself justifiably bound to give protection”. But this attitude of the Supreme Court has been the object of severe criticism by Zamir, , “Justice in the High Court of Justice” (1970) 26 HaPraklit 212Google Scholar.

⁹ The English rule, by which bodies composed of knowledgeable persons adjudicating in competitions and lotteries is not subject to legal criticism, is based on the leading case of Scott v. Avery (1856) 5 H.L.C. 811. Cf. also Cipriani v. Burnett (1933) L.R., A.C. 83; Russell, on the Law of Arbitration, (17th ed., 1963), London, p. 37Google Scholar; Sussman, Y., The Law of Arbitration (Hebrew), (2nd ed., 1962) Tel Aviv, Art. 42Google Scholar. A similar case, in certain circumstances, is that of the certificate of an architect or engineer with regard to the completion of a building work. On the distinction between arbitration and valuation cf. Hogg, Quintin McGarel, The Law of Arbitration, London, 1936, pp. 14, 48Google Scholaret seq. In Dan Even v. Minister of Transport and Joseph Bahr, (1969) (I) 23 P.D., pp. 785, 788, the court held that “as regards the fitness of a certain person for a certain position there is room for varying opinions, but this is not a legal question on which this court can decide”. In this connection mention should also be made of statutory arbitration, the results of which are also not subject to the jurisdiction of the State's legal system. See Sussman, ibid., Art. 36.

¹⁰ See the Arbitration Law, 1968, sec. 24; Explanatory Notes to the draft Arbitration Law, 1967, draft Laws No. 717, p. 72; Russell, op. cit., p. 308 et seq.

¹¹ See the Amendment to the Punishment (Prohibited Games, Lotteries and Betting) Law 1964, secs. 1, 2; Zeltner, Z., Law of Contracts (Hebrew), General Part, Vol. II, Tel Aviv, 1965, p. 99et seq.Google Scholar; Chitty, on Contracts, Vol. II, (22nd ed., 1961) p. 278Google Scholaret seq.

¹² See the Courts Law, 1957, sec. 33; Witkon, A., “Some Reflections on Judical Law-Making,” (1967) 2 Is.L.R. 475.Google Scholar

¹³ (1966) 1 All E.R. 268, 272.

¹⁴ (1966) 2 W.L.R., 1080, 1038. Cf. also the decision of the Privy Council of July 31, 1970 in the claim of Dr. Frank Hansford-Miller v. London University according to the Daily Telegraph of August 1, 1970. A similar view is expressed in a German judgment (1967) 1 Neue Juristische Wochenschrift 72.

¹⁵ Cf. the viewpoint of J., Cohn, Eliyahu Yatzkan v. Israel Chamber of Advocates and others, (1967) (I) 21Google ScholarP.D., 419, 420. In this case the court was petitioned to issue directions for the examing committee of the Chamber concerning the content of the questions which the petitioner, having failed in a first examination for admission to the Bar, is to be asked at a second session.

“the question of what falls within the scope of examination subjects by virtue of the regulations, and what does not, …is within the discretion of the examiners. In this matter the very fact that the judges of this court are, as it happened, likely to form, or are capable of forming an opinion of their own…is irrelevant, in view of the fact that the law applicable to the intervention of this court in matters concerning legal examinations, must also apply to the examinations set for other professions by virtue of the law, in which the judges of this court are not well-versed. The examining committees appointed to conduct these statutory examinations, whatever be the profession, have the standing of experts in their respective fields, and this court would not think of questioning their qualifications”.

¹⁶ Cf. Levontin, A.V., “Debt and Contract in the Common Law”, (1966) 1 Is. L.R. 65;Google ScholarCheshire, G.C. and Fifoot, C.H.S., The Law of Contract, (6th ed., 1964) London, p. 97Google Scholaret seq. call the executory contract a commercial agreement. The history of copyright and industrial property serves as an example for the hesitation of the law to recognise forms of property which are not tangible.

¹⁷ See Paton, George Whitecross, A Textbook of Jurisprudence, (3rd. ed., 1964), Oxford, p. 67: “Law …must not try to enforce the good life as such: it must always balance the benefits to be secured by obedience with the harm that the crude instrument of compulsion may do”Google Scholar.

¹⁸ Cf. Akzin, Benjamin, The Concept of Law in the Decisions of Moshe Smoira (Hebrew), Jerusalem, , 1924, p. 7: “…the totality of the views of a judge constitutes an important factor in establishing the content of his decision. …an examination of his judgments enables us to dwell on the views of one judge or another, on society and its values…”.Google Scholar George Whitecross Paton, op. cit., p. 21 et seq., p. 198 et seq.; A. Witkon, ibid., p. 478.

¹⁹ In the examples submitted the mutual contributions are of equal value, and in this respect the tender and the competition differ from lottery and betting, where the object of the winner's claim far exceeds the consideration given.

²⁰ It is important to stress this point which distinguishes in the cases under consideration between what is justiciable and what is not, lest those approaching the public through tenders be permitted to evade fulfilment of their promises. The tender relating to a profitable transaction has been defined in many precedents such as the comprehensive High Court judgment, Rehovot Packing House Ltd. and others v. Minister of Agriculture and others, (1962) 16 P.D. 20, 27: “every tender for the allocation of work has a double objective from two different aspects: from the point of view of the tenderer, his interest is to invite as many suitable bids as possible from which he can select the bid most acceptable to him; while from the point of view of the interested contractors, the tender gives them the opportunity of securing the work offered on a genuine competitive basis in conditions where equality prevails”.

²¹ See Shalom Cohen v. Minister of Defence and others, (1962) 16 P.D. 1023, 1031, 1033: “discrimination as between the petitioner and others does not of itself create a recognised right for the petitioner…where the petitioner possesses a right recognised in law, a disqualifying discrimination can serve as a ground for the intervention of the court in order to protect such a right but, as has been stated, dicrimination in itself does not create a right…”. See also Alfred Witkon, loc. cit., 52; Montesquieu, L'esprit des lois, Book V. Ch. V; Friedmann, W., Legal Theory (5th ed., 1949) London, p. 73Google Scholar, 416 et seq.

²² Perelman, Ch., Justice, 1967, New York.Google Scholar

²³ Note—Since this article was presented for publication, a Bill on this problem has been brought before the Knesset. See sec. 23 of the Draft Contract Law (General Part) 1970. Hatza'ot Hok No. 880, p. 129 at p. 136. May 5, 1970.

Contract for the award of titles.

“34. Where a contract is made for the award of a title, degree, prize or similar benefit to be decided upon by one of the parties or some third person, the decision so given shall not be subject to examination by the Court.”

Ed.