The centenary of the Mejelle, the Ottoman Civil Code, is not being commemorated by any jubilations. This is not only because so little of it is left in force, but also, and perhaps mainly, because it has remained much of a mystery right up to the present day.

The mystery is due partly to certain initial defects inherent in its preparation. One of these is the ambiguity purposefully introduced into the Mejelle, with the aim of camouflaging its deviations from the Holy Law of Islam which, theoretically, reigned supreme in the Ottoman Empire to its last day. Indeed, true to a long-standing tradition, the assent of the highest religious authority in the Empire, Sheikh-u 'l-Islam, was required before any law could be promulgated. Thus, in the case of the Mejelle too, the said religious authority was associated in its preparation. Once involved in the matter it could no longer shun delicate problems, when the religious law came into conflict with the interests of the State. In order to avoid this dilemma in the Mejelle, its authors applied a new stratagem, that of silent omission.

It is generally thought that the rule of religious law regarding marriage and divorce is a concession on the part of the State of Israel to religious interests. It is assumed that the religious population derives great satisfaction from the fact that the State ostensibly bows down to religious law, declining to exercise its jurisdiction on this matter. The non-observant citizen is widely considered the victim of this arrangement. He is forced to take part in a religious ceremony which is foreign to him and, in such an intimate realm of his life, must render himself of the services of a religious authority that represents concepts and symbols which he adamantly rejects. It is true that this sensitivity to “religious coercion” and freedom of conscience is apparent as regards the Jewish population, whereas there is less of a tendency to increase government intervention in the religious and legal autonomy of non-Jewish religious communities.

The rise of neoliberal agendas of political actors and a wave of privatisation in the globalisation era have often been followed by anti-privatisation strikes. These are union strikes against the privatisation process and against contracting out and opening markets to competition. The article presents the distinction between different versions of constitutionalism regarding anti-privatisation strikes. It discusses two approaches to constitutionalism – the economic approach and the collective approach – and their manifestation in the case law of Israel and the United Kingdom.

The collective approach suggests the recognition of a constitutional status of collective rights as a basis for counter-balancing the neoliberal practices of regulators and political actors. Following the effects of liberalisation on the labour market – both in influencing union organisational capacity and in weakening job security of individual employees, the collective approach is aimed at protecting employees’ rights in a globalised-privatised era. Within the collective approach, constitutionalism is used as a basis for recognising anti-privatisation strikes. In contrast, the economic approach denies the existence of a constitutional right to strike against privatisation.

The article presents an eclectic model which merges the two approaches, and advocates its adoption. Drawing on New Institutional Economics, the eclectic model offers a theory for moderating the constitutionalism practice and developing partial and restrained constitutionalism. It proposes the adoption of a constitutional right to strike against privatisation, when its application reduces transaction costs and advances efficiency and economic goals for the benefit of the public.

In each one of the three main agreements which Israel has concluded to date with the PLO as part of the current peace process, the issue of foreign relations has received special treatment. This reflects the fact that, while the transfer of a number of spheres of authority to the Palestinian autonomous entity has serious practical ramifications, the treatment of the sphere of foreign relations has an added effect on the very nature of the autonomous entity itself, because full capacity to conduct foreign relations is one of the accepted indicia of sovereignty and statehood. Any arrangements reached with regard to the sphere of foreign relations are, therefore, of critical significance.

Third party involvement in keeping the peace in the Middle East has been a constant phenomenon accompanying the vicissitudes of the Arab-Israeli conflict from the war of 1948 up to the present day. The dominant pattern has been the employment of United Nations forces and observers, charged with supervising either the implementation of Security Council resolutions calling for the cessation of hostilities, or the implementation of agreements reached between the parties concerned. The uninterrupted presence of UN personnel in the Middle East has shown that the international community as a whole and the parties in conflict have considered UN peacekeeping essential for reducing tensions and instrumental in bringing to an end local flare-ups. It was only natural that immediately after the Yom Kippur War of October 1973 the states actively involved in the pursuit of peace should rely on the establishment of effective UN supervisory machinery to monitor the execution by the parties of the various security arrangements agreed upon. A United Nations Emergency Force was accordingly dispatched to the Egyptian-Israeli sector and undertook the task of supervision, with the cooperation of observers belonging to the United Nations Truce Supervision Organization. However, foreseen and unforeseen problems arose in the process leading from one disengagement agreement to another and to the treaty of peace between Egypt and Israel of March 1979.

The protection of ‘morals’ appears frequently as a limitation on the exercise of fundamental rights, both in international covenants and in constitutional charters. The European Convention for the Protection of Human Rights is not an exception, and ‘public morals’ may be called upon to justify the restriction of several important rights granted by the Convention, such as freedom of expression or the right to respect for private and family life. To avoid arbitrary restrictions of these rights it is important to understand the meaning of this general clause. This article aims to suggest a reading of the ‘public morals’ clause that singles out its scope and its boundaries.

Over the years, the Security Council has on several occasions dealt with humanitarian assistance issues. However, it is Security Council Resolution 2165(2014), related to the situation in Syria, that has brought the role of the Security Council to the forefront of the debate. It is against this background that the article discusses the legal issues arising from Security Council action facilitating humanitarian assistance to be delivered in situations of non-international armed conflict.

Following a brief survey of relevant practice of the Security Council related to humanitarian assistance, the article considers the relevance, if any, of Article 2(7) of the Charter of the United Nations (UN) to humanitarian assistance to be delivered in such situations. It then moves on to analyse whether a rejection by the territorial state of humanitarian aid to be delivered by third parties may amount to a situation under Article 39 of the UN Charter. It then considers in detail whether (at least implicitly) Resolution 2165 has been adopted under Chapter VII and, if this is not the case, whether it can be still considered to be legally binding.

The article finally considers what impact the adoption of Security Council Resolution 2165 might have on the interpretation of otherwise applicable rules of international humanitarian law and, in particular, the right of third parties to provide humanitarian assistance in a situation of a non-international armed conflict in spite of the absence of consent by the territorial state, and the obligations that members of the Security Council, permanent and non-permanent, have under Common Article 1 of the Geneva Conventions when faced with a draft resolution providing for the delivery of humanitarian assistance, notwithstanding the absence of consent by the territorial state.

The quarter-century anniversary of Israel's ratification of the major United Nations (UN) human rights treaties is an opportunity to revisit the formal and informal interaction between domestic and international Bills of Rights in Israel. This study reveals that the human rights conventions lack almost entirely a formal domestic legal status. The study identifies a minor shift in the scope of the Israeli Supreme Court's reference to international law, as the Court now cites international human rights law to justify decisions that a state action is unlawful, and not only to support findings that an action is valid. This shift may be the result of other reasons, for instance, a ‘radiation’ of the Court's relatively extensive use of international humanitarian law in reviewing state actions taken in the Occupied Territories. However, it may also reflect a perception of enhanced legitimacy of referring to international human rights law as a point of reference in human rights adjudication following ratification of the treaties.

At the same time, the Court continues to avoid acknowledging incompatibility between domestic law and international law. It refers to the latter only to support its interpretation of Israeli constitutional law, as it did before the ratification. This article critically evaluates this practice. While international human rights law should not be binding at the domestic level, because of its lack of sufficient democratic legitimacy in Israel, it should serve as an essential benchmark. The Court may legitimise a human rights infringement that is unjustified according to international law, but such incompatibility requires an explicit justification. The Court, together with the legislature and the government, are required to engage critically with the non-binding norms set by the ratified UN human rights treaties.

Only five years after the end of the Second World War terminating the complete disregard for human rights in one of the important European countries and in the occupied territories, the governments of European countries agreed on a European Bill of Rights and took the first steps toward collective enforcement of certain rights of the Universal Declaration, adopted by the General Assembly of the United Nations in 1948. Evidently the Convention was a response to the totalitarian ideologies prevailing in national socialism but also to the communist ideology and practice governing the Soviet Union and the European countries behind the iron wall. Was the Convention intended to be more than a response and clarification of the fundamental principles which were well recognized in the constitutional structure of the free European states? If this is the case it should have had an impact on the legal system of member states.

How far that impact would go was certainly not foreseen in 1950 or 1953 when the Convention came into force. By hindsight we may say that the establishment of the European Commission of Human Rights and the European Court of Human Rights as judicial organs to enforce the Convention had something that is called “List der Vernunft” in German, a certain rule of reason, not fully understood by the drafters.

In this paper, I address the relevance of the normative dimension of international relations against the background of the Advisory Opinion of the International Court of Justice of July 9, 2004, with reference to the legality of the security barrier/fence being erected by the Israeli government since March of 2002. I examine different approaches to the study of norms in international relations, focusing upon the Grotian approach, which represents a middle ground between the extreme Hobbesian (Realist) and Kantian (idealist) traditions of international relations. According to the Grotian approach, international norms affect the foreign policy of individual countries through their institutionalization in the international society, usually through multilateral instruments of international law. In this sense, both the ruling of the Israeli Supreme Court of June 30, 2004, and the Advisory Opinion of the ICJ of July 9, 2004, represent and reflect those instruments. The International Court of Justice is the major legal institution of the United Nations, which is the embodiment of our international society. Hence, even if its ruling is considered biased or distorted (by Israel), it still carries an important normative and political baggage, by underlining paramount norms such as self-determination and protection of human rights.

“Liberty of the individual is a thing of the past, or the future, in Palestine”, wrote Bernard Joseph, a distinguished member of Israel's “government in the making” in 1948, shortly before Israel was inaugurated as a sovereign state. Joseph's “present” was the dusk of British rule in Palestine. Draconian Defence (Emergency) Regulations suspended conventional liberties ordinary westerners were accustomed to expect and turned Palestine into a police state.

Precisely what “liberty of the individual” the esteemed jurist, who held degrees from both McGill University and the University of London, had in mind when he invoked the past of Palestine is not entirely clear. He could not have possibly meant liberty under the Ottoman regime which prevailed until 1918. Ottoman rule in Palestine was authoritarian, feudal and corrupt.

Four fundamental and inter-related points must be borne in mind when discussing existing or prospective legislation on the treatment of mentally-sick offenders:

First, the basic misconception in regard to the true nature of the issue of criminal insanity; secondly, the long-standing conflict between the legal and medical professions in regard to this issue, and the need to shift the centre of the conflict from the substantive to the procedural levels where considerable progress towards close cooperation has already taken place; thirdly, the inter-relationship of the procedural and substantive levels and the great power which the former is capable of wielding over the latter; and fourthly, the effects of the typical, traditional modes of procedure and trial techniques of individual countries on their existing laws and on future legislative progress.

The dual nature of the problem of the mentally-sick offender has been the source of much confusion. The substantive tests of criminal responsibility predicated on the mental condition of the accused at the time of the offence have been confused with the distinct problem of the modes of ascertaining his mental condition before, during or after criminal trial, and the setting up of machinery for disposal or treatment.

In this comment I wish to defend Antony Duff's final conclusion; namely, that punishment is to be seen as a deterrent system constrained by requirements of justice. I shall do this, however, mainly by using John Kleinig's arguments. My aim is to show that although Kleinig himself rejects deterrence as part of punishment's justification, some of his arguments can best be defended if deterrence is taken into account. In the final section of the comment I shall return to Duff's arguments in this context, but only in order to raise some doubts as to their underlying assumption.

Before doing so, let me compare, briefly, Duff's and Kleinig's attitudes which seem to be relevant to the purpose of this comment.

Both Kleinig and Duff believe that, ideally, punishment is to be justified by retributive considerations. According to Kleinig, even in such an imperfect society as ours, punishment should still remain retributive.

Any scientific discipline worthy of the name is successful in eliciting the essential nature of the area with which it is concerned and in identifying its basic categories and determining the rules applicable to the inter-relationship of these categories. On these conditions alone can scientific inquiry fulfil its major, perhaps only, task of solving the practical problems that arise in the particular area of study. In every science, therefore, a central place is assigned to an examination of its specific categories.

Jurisprudence establishes general juridical categories that prevail in every branch of law. Yet each branch of law, including the criminal law, has laid down and delimited its own particular categories and continues to do so. From time to time social phenomena appear which do not lend themselves to the classificatory grouping of the current jurisprudential theory. In such cases, the scholar must extract the basic constituents of these phenomena, trace their specific consequences, determine their special nature and dovetail them into the classificatory system of the relevant branch of the law. From this process also derives the practical interest of the scholar in facilitating the smooth articulation of the actual phenomena with the previously prescribed categories and relating to them the legal effects specific to the category under which they fall to be grouped.

Consider the following statements, which describe the Anglo-American laws of evidence: