The problem of computerized data has been largely conceived of in terms of the concept of privacy. Thus any check of legal periodicals will disclose a number of articles on computers and privacy, and a recent Bill before the English Parliament is entitled “A Bill to Prevent the Invasion of Privacy through the Misuse of Computer Information”.

In fact privacy is only one aspect of a wider complex problem, and the concept of privacy both factually and legally is far from coextensive with that problem. Proposals such as the English Bill which speak in terms of privacy are really concerned with problems of accuracy of information, its dissemination and use; and the information may be public or private, it may have been acquired legally or illegally, with or without intrusion of privacy, with or without knowledge, with or without consent.

Perhaps the problem could here be categorized as one in which society is attempting to set standards of fair acquisition, fair dissemination, and fair use of information. It is confusing, as will be illustrated below, to set these standards in terms of privacy which is only one of a number of personal and societal values involved.

The rise of Zionism, with its call for renewed national political life and return to the national homeland, inevitably evoked a material change in the mental attitude of the Jewish people towards Jewish Law, a law possessing, as I have already said, not merely religious value but also manifest national significance. Thus a movement was mustered of Jewish lawyers and scholars and others from all ranks of society, which regarded the return of Jewish society to Jewish Law a national restoration, parallel with the restoration of the Jewish homeland and the revival of the Hebrew language.

This movement for a restoration of Jewish Law signals also a new trend in its study. From modest beginnings in the 17th century, scientific research into Jewish Law had been occupied with a variety of problems, whether of the parallelism between the Jewish legal system and other systems, the moral and philosophical theories embodied in its institutions and of its vast many-sided historical and literary expression. The common feature in all this research had been that it was pursued for its own sake, for theoretical and not for practical purposes.

My purpose in this paper is to examine the way in which judges have developed the concept of equality in Israel. This examination will concentrate on Supreme Court judgments regarding the right to equality, in the context of group discrimination. There is a dual focus to the research: first, analysis of the decisions in order to clarify the concept of equality which is applied by the judges and, second, examination of the extent to which the judges have been activist in promoting the concept of equality. The latter enquiry is directed both to the intrinsic importance of this question and also to the current flood of attacks on the Supreme Court's judicial policy on the alleged grounds that it is over-activist and, hence, illegitimate. The reason for the choice of the equality issue as the litmus test of judicial activism is the fact that it is the Court's decisions on this issue which have provoked much of the political opposition to the Court. There have also been academic claims that the Court has been too activist, which criticize the Court's human rights jurisprudence, arguing that the Court has over-extended the borders of human rights concerns to include situations that should not properly have been perceived as such.

This article explores the possibility of elaborating a strong rights foundation for ‘weak’ legal pluralist arrangements, consisting of the recognition by the state of a degree of autonomy for the legal practices of minorities. It finds unhelpful and reductionist those arguments based merely on whether certain aspects of minority law are in violation of human rights or are more effective at protecting rights than state law. Instead, the article seeks to tackle the central issue of whether there is more generally a human rights case for legal pluralism, despite the modern rights movement's strong historical association with state monism and egalitarian universalism. Traditional rights bases for minority protection, both group and individual based, are envisaged specifically from the point of view of recognition of minority legal traditions. Both are found to raise difficulties that are magnified by the entry into play of legal considerations. When it comes to collective rights, there is a fear that endowing certain communities with legal autonomy will increase their ability to oppress the minority within; when it comes to individual rights, the idea of a ‘right to one's law’ misses the degree to which law is an institutional construct which requires a new division of power within the state that goes far beyond what are generally understood as basic freedoms. Rather than assessing the problem merely from an individual or group point of view, the rights validity of legal pluralist arrangements is seen as dependent on how they relate to society at large. Specifically, a case is made that legal pluralism can be part of a beneficial coming to terms by societies with their diversity, a reinforcement of democratic forms and, in some cases, a type of transitional justice that recognises the extent to which the deprivation of law has been a traditional means of subjugation of minorities. The article concludes with an effort to recast the entire debate from the point of view of international human rights law and to critique its somewhat arbitrary focus on the state as the only locus of significant legal diversity.

The phenomenon of social exclusion in Israel is a vivid demonstration of the Basic Laws' failure to fulfil their integrative role. Despite the ‘constitutional revolution’ and the Supreme Court's ongoing endeavour over the last two decades to instil a bill of rights through its jurisprudence, Israeli society has failed to fully internalise values of equality. In terms of legal jargon, individuals continue to claim and exercise ‘sole and despotic dominion’ over their private property in order to avoid contact with individuals belonging to certain minority groups. In many cases, such behaviour in the private sphere results in exclusion from the public sphere.

This phenomenon is especially astonishing considering the fact that many laws in Israel apply the right of equality to the private sphere. Furthermore, the Israeli Supreme Court has developed comprehensive human rights jurisprudence applicable to the private sphere. The gap between the law in the books and the law in action illustrates that effective implementation of human rights in the private sphere cannot be achieved solely by specific legislation or by jurisprudence that is sensitive to human rights. This argument is backed by several recent bills which preserve and enforce the exclusion of minorities, particularly of Arabs, from the public sphere. These bills illustrate that exclusion is indeed a growing phenomenon in Israeli society that cannot be overlooked. Moreover, they underscore the urgent need to entrench a direct obligation to apply human rights to the private sphere at the constitutional level. This will be achieved only when Israel adopts a full constitution.

The idea of rights has been central to U.S. political and constitutional discourse from the beginning. The Declaration of Independence appealed to “inalienable rights,” and the first amendments to the Constitution were universally described as a bill of rights. Yet, something distinctive appears to have happened to the idea of rights over the course of the twentieth century. By the end of the century, rights-claims were being asserted in locations, such as schools and prisons, where they had not been found at the century's beginning, and they were being asserted on behalf of claimants, such as fetuses and new arrivals to the United States, who were outside the domain of rights earlier. Even the content of rights-claims changed. Much of the Warren Court's work completed a constitutional agenda outlined, albeit unclearly, in the 1940s and early 1950s as part of the New Deal's constitutional vindication. The Warren Court added something new—an emphasis on personal autonomy—to the New Deal's concerns for fairness in the political process.

States have undertaken an international obligation to investigate and prosecute individuals for serious human rights violations and grave breaches of international humanitarian law. However, compliance with that obligation is poor and prosecutions at the national level remain few. The mechanism for enforcement of that obligation is also limited. This article explores the way in which the International Court of Justice (ICJ) can play, and has played, a role in this respect. The jurisprudence of the Court is analysed with regard to three matters: (i) the obligation of states to investigate and prosecute serious crimes at the national level; (ii) national criminal jurisdiction with regard to prosecution of serious crimes, as well as immunities from that jurisdiction; and (iii) the obligation of states to cooperate in criminal matters with other jurisdictions. The Court has adjudicated on some key issues relating to national prosecutions. Some of its findings have, without doubt, enhanced the enforcement of prosecution at the national level, while others have undermined it. Recent cases before the ICJ show an increased willingness by states to use the Court as an avenue for enforcement and, at the same time, the Court has proved more willing to utilise its powers.

Humanitarian assistance is essential for the survival of the civilian population and people hors de combat in the theatre of war. Its regulation under the laws of armed conflict tries to achieve a balance between humanitarian goals and state sovereignty. This balance, reflected in the provisions of the 1949 Geneva Conventions and their Additional Protocols, is not as relevant to contemporary armed conflicts, most of which involve non-state armed groups. Even those provisions relating to humanitarian assistance in conflicts involving non-state armed groups fail to address properly the key features of these groups, and especially their territorial aspect. This article proposes a different approach, which takes into consideration and gives weight to the control exercised by non-state armed groups over a given territory. Accordingly, it is suggested that provisions regulating humanitarian relief operations in occupied territories should apply to territories controlled by armed groups. This approach views international humanitarian law first and foremost as an effective, realistic and practical branch of law. Moreover, it has tremendous humanitarian advantages and reflects the aims and purposes of the law, while considering the factual framework of these conflicts.

Only a brief interval separated the signing into law of the two Basic Laws of 1992 and the rhetorical elevation of that moment to revolutionary significance. However, use of the term “constitutional revolution” to describe the addition of the Basic Laws on Freedom of Occupation and Human Dignity and Freedom to the corpus of Israeli fundamental law was destined to have more than rhetorical significance. Had the characterization been made by someone other than the next President of the Supreme Court, it might have attracted a modicum of public attention before fading from view, perhaps to be remembered only as a felicitous example of wishful thinking.

There are three constitutional branches: the legislative branch, the executive branch, and the judicial branch, and they are the product of our constitution, our Basic Laws. They are of equal status, and the relationship between them is one of “checks and balances”. This system is designed to assure that each branch operates within the confines of its authority, for no branch may have unlimited powers. The purpose of checks and balances is not effective government; its purpose is to guarantee freedom.

In this system of powers, the task of the judicial branch is to adjudicate conflicts according to the laws. For that purpose, the judicial branch has to perform three principal functions. The first is concerned with determining the facts. From the entirety of the facts, one should determine those facts which are relevant to adjudicating the conflict. The second function is concerned with determining the law. The third function is concerned with applying the law to the facts, and drawing the appropriate judicial conclusion.

1. May a Judge Refuse to Pronounce Judgment?: In modern legal systems, the judge cannot as a rule evade his basic duty, that of adjudicating. He has the option of either allowing or of rejecting the plaintiff's claims. Under the rules of criminal procedure adopted by several countries, he may acquit for insufficient evidence. But he cannot be released from exercising his function as a judge, claiming either that the facts of the case are not sufficiently clear to him (factual doubt), or that the norm to be applied in the specific case cannot be determined (judicial doubt), or even that there exists no fixed norm for the determination of the case (lacuna in the law).

Thus the Code Civil des Français (or Code Napoléon) lays down explicitly: “A judge who refuses to decide a case, on the pretext that the law is silent, obscure or insufficient, may be prosecuted as being guilty of denial of justice”. This article is the outcome of a long evolutionary process. Prior to the French Revolution, before the separation of powers, the main question was not that of lacunae but rather that of the directions given to the judge in order to help him carry out his functions.

The manner in which rights should be classified and the various classes defined have been discussed the world over for many generations. This fundamental problem of conceptual jurisprudence has challenged the acumen of many scholars; but to avail. Yet it is vital to find a suitable test of distinction not only for the sake of theoretical thinking but also for the needs of daily practice. Thus, how shall we decide to what extent we are legally bound to respect another person's right? How does such a right arise? How is it transferred? When does it expire? And how shall we know what law is applicable in all these matters? Is it the law of property or the law of obligation? Is it the law governing the place where some piece of property is situated or the law under which the right was created? To answer these questions it will often be necessary to find out in what category the right considered belongs.

When our Sages searched for an analogy to a situation in which a compromise or balance had to be found between two opposing forces pulling in opposite directions, they invoked the picturesque image of the “muleteer and the camel driver”. The muleteer runs behind the animal and prods him with the stick in his hand, whereas whoever drives the camel must walk in front of him, tugging gently at the halter. A person who has been charged with driving both a mule and a camel at the same time must, therefore, walk between the two and accustom himself to a middle way of walking which will more or less suit both beasts.

This analogy came to mind when I was asked to review the main trends in family law in Israel. Here we have a system afflicted with legal schizophrenia, for within it, two different juridical systems — that of religious law (or laws) and that of secular law — are struggling and pulling in opposite directions. To find a balance or compromise between these two is the major part of the task with which the legislator, and also the judge, is charged, and it is a mission which is not always successfully accomplished.

It is a feature of the English law of sentencing that the penalty laid down for an offence indicates the maximum which may be imposed for that offence, but that in lieu of such penalty a milder one may be imposed at the discretion of the court. Apart from the special case of murder where life imprisonment is mandatory, exceptions to this rule are rare.

In Israel this same principle was incorporated in section 42 of the Criminal Code Ordinance, 1936, and in the section which replaced it, section 1 of the Penal Law Revision (Modes of Punishment) Law, 1954, which states as follows: “A court which has convicted a person of an offence may impose on him any penalty not exceeding the penalty prescribed by law for that offence”. In lieu of the term of imprisonment specified by the law a court is thus empowered to impose a shorter period of imprisonment, a conditional term of imprisonment, or a fine; it may, alternatively, make a probation order.

Ganimat v. The State of Israel (1995) 49(iv) P.D. 589.

The appellant was indicted in the Jerusalem Magistrate Court for two incidents of car theft. His detention was requested on the grounds that he posed a “danger to society”. The Magistrate Court agreed to his arrest, holding that a custom has been established whereby custody may be justified in crimes which have become “a nationwide scourge”, including car theft. The District Court rejected the appeal. The appellant was granted permission to appeal the decision in the Supreme Court (decision of Dorner J. and Barak J.; Cheshin J. dissenting) and his conditional release was ordered. However, it was decided to hold Special Proceedings in order to discuss some of the important issues raised by the case. The principal constitutional question raised by the case was whether the Basic Law: Human Dignity and Liberty influences the interpretation of the existing law, in the present case, the law of arrest as regulated by the Law of Criminal Procedure.