It is becoming increasingly apparent to criminal justice scholars that single theory models of criminal procedure — whether termed inquisitorial or adversarial — are being stretched beyond their capacity by the phenomena they are designed to control. Virtually everywhere, formal systems of charge and adjudication cannot possibly be enforced in accordance with the premises underlying them. There are simply too many offenses, too many offenders and too few resources to deal with them all. One result has been a steady movement towards a convergence of legal systems — towards borrowing from others those institutions and practices that offer some hope of relief.

In this transnational effort to cope with system overload, two issues have emerged as more than ordinarily significant: The first is the desirability of abandoning the principle of obligatory prosecution, so common in Continental Europe, and turning instead to the exercise of prosecutorial discretion. The second is the question whether the ban on guilty pleas and plea bargains should be lifted, as in adversarial systems.

Nobody would deny that in a considerable proportion of cases which come before a judge for decision, the law is clear, and indeed often undisputed by the parties. In these cases, the Judge's duty raises no special problem so far as the law is concerned, though it may do so as to the facts. But it is also true that there are a significant number of cases in which the law or at least its application, is unclear, and the nature of the judicial role is then more controversial. During the last few decades legal theorists and judges themselves have often discussed these questions in various public pronouncements. In this lecture I want to focus principally on a number of assumptions and views about the judicial role which appear to be largely peculiar to the English, or perhaps Commonwealth judiciary. But before I look more closely at the English judiciary, I would like to set the discussion into a broader theoretical framework.

Ever since the American and the French revolutions, it was taken for granted that a written, formal, Constitution was essential to the functioning of a modern State. Old-established States, as they moved toward modernization or away from absolutism, hurried to provide themselves with Constitutions. New States enacted Constitutions as a matter of course, as one of the first acts of a newly-found sovereignty, often copying them from available models and without pausing to consider to what extent the provisions copied would suit the particular characteristics and goals of their respective societies. The well-known process of “reception” of laws was followed by a similar trend to “receive” Constitutions. To have a formal Constitution well-nigh became a universal fashion, a symbol of modernism. In the aftermath of the First World War, only two groups of fully independent States remained without Constitutions. One of them comprised countries still in their pre-modern stage, in respect both of their political and of their general social set-up, and without pretensions to modernity: Afghanistan, Ethiopia (then Abyssinia), Saudi Arabia, Thailand (then Siam), Yemen; since then, each of these, bent on modernization, provided itself with some kind of constitutional chart. The other group consisted of the one and only Great Britain, looked upon by everybody as a case apart.

The breach of contract or commission of a civil wrong gives rise to a right of the injured party to compensation for damage caused by the violation of his right. In principle, the amount of money to be received as compensation is determined in two stages: the first stage is the establishment of the real scope of the compensable damage, i.e. the definition of the loss or detriment with respect to which the victim is entitled to compensation; the second stage is the monetary assessment of the compensable damage—translating the loss or detriment into monetary units which will reflect the financial value of such loss or damage. The whole process is governed by the higher principle of restitutio in integrum, i.e. restoring the victim to his former position, which in the field of tort law means restoration of the victim to his position prior to the commission of the tort, and, in the field of contracts, means bringing him to the situation in which he would have been had the agreement been honoured.

Property rights exist only in their relationship to certain assets. A property right per se has no independent existence. Thus, for example, the sentence: “‘A’ is the owner” is meaningless as long as there is no mention of the object of which A is the owner (“‘A’ is the owner of the house”). This also applies to lease, pledges and other property rights — without assets to which the rights relate, the rights do not exist. Things which are the objects of property rights are the various “assets”, and a person's aggregate assets constitute his “wealth”.

Applying human rights beyond state borders is thorny. Which law governs the property rights of a Palestinian whose orchard lies across the Israeli border, or the cross-border shooting of a Mexican citizen by a United States border control agent? This article explores the relationship between constitutional law and international law in the extraterritorial enforcement of human rights by offering a typology of models: the American, European and Israeli models. These models are analysed comparatively, highlighting their chosen legal source of rights: the American model applies constitutional law, the European model uses international law, and Israel combines the two.

The article argues that the choice between constitutional and international law is important as it affects the nature and scope of rights, and reflects the relationship between the state and the territory it controls or within which it acts. The dynamic formation process of the Israeli model demonstrates the multiple possible ways to combine these two sources of law and formulate the relationship between them.

All three models share a ‘constitutional mindset’: the use of basic legal concepts and reasoning in legally grey zones. However, these transnational processes are not deterministic and could result in original concepts, contradictions and discrepancies, as well as serve different political visions.

The article seeks to shed light on a lacuna in the law and international adjudication regarding the entitlement of coastal states to the exclusive economic zone (EEZ), by analysing the implicit requirement in the UN Convention on the Law of the Sea of proclamation to establish such entitlement. The main argument of the article is that despite the requirement for proclamation, there is no definition of this act in international law that clarifies its legal status. Nonetheless, failure to heed the requirement to proclaim an EEZ can affect the establishment of the EEZ, which in turn affects the rights and jurisdictions of coastal states in the zone. It can also affect the competence of judicial institutions to decide on matters such as delimitation of overlapping zones.

The latest developments in the Middle East region are of great concern to the International Committee of the Red Cross (ICRC). The current level of violence, displacement and destruction in and around Syria is unprecedented in a region that has already suffered conflict and instability for most of its modern history. According to recent figures released by the United Nations (UN), over 100,000 people have died from the fighting in Syria; more than six million have been forced to flee their homes, including two million who have found refuge in neighbouring countries. This is putting an immense strain on host communities and governments.

The following commentaries are responses to the rough drafts of six lectures—the Hourani Lectures—that I delivered at the University of Buffalo in November of 2006. This draft manuscript is being extensively revised and expanded for publication by Oxford University Press as a book provisionally called The Morality and Law of War. Even though in January 2007 the book was still both unpolished and incomplete, David Enoch at that time generously organized a workshop at the Law School of the Hebrew University of Jerusalem to discuss its ideas and arguments. George Fletcher chaired the meeting and Re'em Segev, Yuval Shany, and Noam Zohar all presented superb commentaries. The following papers have all grown out of that memorable occasion.

The article aims to further the understanding of the current constitutional crisis in Israel through the lens of political polarisation. Israel, like other countries around the world, is experiencing a substantial increase in political polarisation. Recent data shows that since 2009 affective polarisation (the extent to which individuals have negative feelings towards members of the opposing party or group and positive feelings towards their own party or group) has risen by 180 per cent. The article discusses the various phenomena associated with an increase in polarisation and the problems it raises, traces the reasons for the increase in polarisation in Israel, and argues that polarisation has played an important role in creating the conflict between the current government and the Supreme Court, and in making it so intense and intractable.

Military artificial intelligence (AI)-enabled technology might still be in the relatively fledgling stages but the debate on how to regulate its use is already in full swing. Much of the discussion revolves around autonomous weapons systems (AWS) and the ‘responsibility gap’ they would ostensibly produce. This contribution argues that while some military AI technologies may indeed cause a range of conceptual hurdles in the realm of individual responsibility, they do not raise any unique issues under the law of state responsibility. The following analysis considers the latter regime and maps out crucial junctions in applying it to potential violations of the cornerstone of international humanitarian law (IHL) – the principle of distinction – resulting from the use of AI-enabled military technologies. It reveals that any challenges in ascribing responsibility in cases involving AWS would not be caused by the incorporation of AI, but stem from pre-existing systemic shortcomings of IHL and the unclear reverberations of mistakes thereunder. The article reiterates that state responsibility for the effects of AWS deployment is always retained through the commander's ultimate responsibility to authorise weapon deployment in accordance with IHL. It is proposed, however, that should the so-called fully autonomous weapon systems – that is, machine learning-based lethal systems that are capable of changing their own rules of operation beyond a predetermined framework – ever be fielded, it might be fairer to attribute their conduct to the fielding state, by conceptualising them as state agents, and treat them akin to state organs.

This article departs from the normative assumptions about the status of militant democracy in transitional countries, while drawing on the constitutional appraisal of free speech and non-discrimination in Central and Eastern Europe during the period 1990–2012. It explores two models (‘American’ and ‘European’) of legal engagement with hate speech, targeting this recurrent constitutional theme to trace the militant in the transitional discourse on freedom of expression. The study scrutinises the legislative framework and the adjudication of the higher courts (constitutional, supreme and appellate courts) in three selected countries of Central and Eastern Europe – the Czech Republic, Hungary and Poland – in an effort to address the dearth of literature in the English language on hate speech laws and policies in these jurisdictions. The author concludes that the discourse on transitional democracy in this post-communist constitutionalism has been substantially constructed as a form of militant democracy, despite some visible influence of the American free speech narrative.

Given the burgeoning literature on the devaluation of national citizenship and the effects of globalization, the sources and beneficiaries of individual legal rights assume increased importance. This Article seeks to distinguish those legal rights that states should confine to their own citizens from those that flow from residence, immigration status, territorial presence, or simply personhood. Section I examines the very reasons for states to distribute citizenship in the first place. These reasons relate to participatory democracy, immigration privileges, other rights and disabilities, personal emotional fulfillment, building community, continuity over time, sovereignty, and the world order. It finds unconvincing those reasons that rest on the municipal interests of states but, given the present world order, finds those reasons that are rooted in international relations more compelling. Building on those conclusions, Section II considers a second normative question: What are the key variables that should determine whether a given legal right should be confined to citizens rather than made more generally available to all persons or at least selected classes of noncitizens? Section III then illustrates how one country—the United States—parcels out legal rights and examines whether its decisions comport with the demands of international human rights law.

Seen in the context of the Middle East peace process, the security aspects of the Israel/PLO Agreements constitute a small, but important step within this process. Formally, the security arrangements in the bilateral agreements have to be distinguished from the issue of security in terms of strategic needs and arms control dealt with in the multilateral negotiations. However, bilateral security arrangements will in the long run, influence and be influenced by the content of the multilateral negotiations in the field of security. It appears to have become customary in Middle East peace negotiations, that only once an agreement has been reached on a larger issue, do teams of experts deal with the details of security arrangements. This was the case in the negotiations of the Peace Treaty between Israel and Egypt, and of the Israel/PLO Agreements. The approach adopted by Israel in relation to Syria concerning the Golan Heights, is also similar in character.

International terrorism and traffic in narcotic drugs would seem at first sight to represent two categories of offences that ought to be kept apart in a discussion concerning the problems of extradition in respect of them. The prima facie approach of differentiating, for extradition purposes, between international terrorism, on the one hand, and traffic in narcotic drugs, on the other hand, would appear to be warranted by the different perception of these two groups of offences prevailing in the mind of the general public. While crimes of international terrorism are perceived as being normally inspired by political motives, traffic in narcotic drugs is generally believed to be motivated solely by the prospects of quick enrichment. Since extradition treaties almost invariably exclude political crimes from their scope of application, the distinction, for extradition purposes, between terrorism and drug crimes is not far to seek.

However, these different perceptions of the two categories of crimes are somewhat deceptive, and more apparent than real, and the differences between them are, at most, differences of degree rather than of substance.

An exemption clause which purports to affect the rights and liabilities of a stranger to the contract raises the question of the connection between privity and exemption clauses. It is usual to regard the denial of validity to an exemption clause referring to the liability of a stranger as deriving from privity. Let us therefore commence by clarifying the meaning of privity and its relationship to exemption clauses and then go on to explain our view that such clauses should operate in favour or against a stranger in accordance with general principles of the positive contract law. Since privity has two aspects — denying a contract the capacity neither to benefit nor to harm a stranger — our treatment of the influence of privity upon exemption clauses will likewise deal with exempting a stranger and fettering him. After describing the situation in English law, we will turn to Israeli law which is no longer identical with English law, regarding the relationship between privity and exemption clauses.

In this era of increasingly extensive legal regulation of human behavior, there is one type of human conduct which seems almost unpermeable to legal regulation: the education of children. The problematics of exercising educational or disciplinary powers against children concern a variety of situations, including the prima facie infringements of many personal rights of children. The most typical limitation of the rights of children by disciplinary measures is, of course, corporal punishment, that is, by actual chastisement conducted by a parent, a guardian, a schoolteacher or any other adult responsible for the training or education of children. However, children are also liable to the infringement of other rights. To a great extent, a child does not fully enjoy many personal physical rights considered to be indisputable for an older person. Thus, for example, a child's detention against his will may not constitute false imprisonment, and the seizure of a child's most intimate personal property may not be considered trespass. It is only for the sake of simplicity, therefore, that I prefer to focus our short discussion on the most conspicuous instance of this general phenomenon, namely, the deliberate physical assault of children.

The entrance of Israeli forces into Lebanon in June 1982 (“Operation Peace for Galilee”) raises far-reaching legal issues that transcend this particular occurrence. One of the issues raised in this context is the legality of the use of armed force by a State to counter terrorists directing their attacks against its citizens from the territory of another State. Israel considered the action it took against the Palestine Liberation Organization (PLO) in Lebanon to be legitimate self-defence, directed not against the territorial integrity of Lebanon, but rather against the armed PLO terrorists operating from it against Israel. Others viewed Israel's actions as aggression, and Israel as an invader violating Lebanon's sovereignty. This invasion, it was asserted, was contrary to international law.