This is yet another manuscript by one of the most interesting and prolific American constitutional law professors that the Critical Legal Studies movement has produced. Mark Tushnet has written extensively and influentially in the fields of both American and comparative constitutional law. He is a known expert on twentieth century American legal history, bringing this expertise to bear in writing his ambitious and most recent book, The Rights Revolution in the Twentieth Century.

This review of an early draft of the book will consist of three parts. The first portrays Tushnet's descriptive enterprise in a nutshell. The second discusses the historical dimensions of Tushnet's work. The last evaluates its contribution to legal theory along the lines suggested by Alon Harel.

The right of the citizen to express his views publicly is a basic feature of the democratic system. However, the freedom of expression, and the closely related freedom of public assembly, do at times conflict with other major social interests. As a result, no society has accepted the theory that these freedoms should be absolute. The democratic process requires a balancing of these freedoms with other important values and public interests. Consequently, each state has placed various limitations on the freedom of expression and public assembly. If a government limits these freedoms too much, it may do irreparable damage to the democratic process. Likewise, the fact that the freedom is enshrined in some constitutional document does not ensure that it will be given any meaningful protection. Whether or not fundamental freedoms are really preserved, is the true test of a democracy.

Demonstrations have traditionally been used as a vehicle for expressing dissent. A citizen who is generally satisfied with the social and political status quo will probably not feel a need to exhibit his satisfaction publicly.

Great efforts have been made during the last decade to combat all forms of racial discrimination and anti-semitism, by legislation as well as on the social plain. On an international level, special conventions have been adopted, and some countries such as the United States, Great Britain, and Austria have, in addition, adopted special provisions to deal with their own specific problems. The growing number of foreigners who now come to work (Arabs, Africans, Portuguese, Italians, Greeks, Turks etc.) in Western Europe, have aggravated the ever present tradition of racism and anti-semitism, and have produced new forms of racial discrimination. In 1972, France widened the legislation which had been initiated in 1939. A number of cases have already been decided by French courts applying the 1972 law and in this article we will discuss its practical application.

In this paper I shall be discussing a fundamental problem in the relationship between law and the social sciences. Many social scientists have pointed out that the “pull of the policy audience” in legislative and administrative exercises and the confines of practical decision-making in legal settings can compromise the proper development of academic social science and blunt the edge of political critique. The danger is real enough. But they have given insufficient attention to the opposite concern which will be my topic in this article. Here the charge is that the introduction of social scientific styles of reasoning can have ill effects for legal practice by threatening the integrity of legal processes and the values they embody. How can social scientists be sure that they have properly understood the nature of law or the meaning and point of the legal rules, procedures, and institutions which they attempt to analyze and seek to improve? What warrant can they have that social scientific interpretation, at any level, does not end up creating law in its own image? If this is a genuine risk, what implications follow for the way law should learn from social science? I shall argue that there are no easy answers to these questions even, or especially, where law apparently welcomes contributions from social science.

For all its merits, case law is incapable of inculcating Cartesian thinking, thinking which is clear and distinct. Admittedly the legislature also is not always careful in making apparent the ratio of its enactments—sometimes it is not even aware thereof—but at least it will not consciously obliterate distinctions. By contrast, case law normally masks its innovations and postulates conceptions which are somewhat vague. It is consequently natural to regard with suspicion any endeavour to mark out clear-cut boundaries, much in the manner of Roman thinking that “all definitions in law are dangerous”.

Considerations such as these are awakened, for example, in connection with the leading case of Krell v. Henry, the most well-known of the “Coronation cases”. To determine the force and significance of this precedent is a primary task in English law itself because on that will depend whether or not it is innovatory; but it is especially crucial in point of Israel law for the purpose of deciding whether it has any foothold in this country.

This issue of the Israel Law Review is devoted to a written academic symposium on the Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service (GSS) Regarding Hostile Terrorist Activity (the “Landau Report”). The Commission was established in May, 1987 to investigate GSS interrogation practices and to reach legal conclusions concerning them. The need to establish the Commission followed revelations of activity within the GSS which was prima facie unlawful.

The Report discusses a dilemma fundamental to any democratic state forced to cope with hostile terrorist activity (HTA): the dilemma “between the vital need to preserve the very existence of the State and its citizens, and [the need] to maintain its character as a law-abiding State which believes in basic moral principles” (R., 77). The only solution to that dilemma, according to the Report, requires that the “law itself … ensure a proper framework for the activity of the GSS regarding Hostile Terrorist Activity” (R., 79).

The First Amendment to the United States Constitution erects, in Thomas Jefferson's phrase, “a wall of separation between church and state”. The United States Supreme Court has, with a consistency not evident in all areas of constitutional law, supported the “wall of separation” metaphor even in the face of warnings that “a rule of law should not be drawn from a figure of speech”. The origin of the phrase has been traced to the words of Roger Williams, the founder of the colony of Rhode Island in 1636, who, in his concern over worldly corruption infecting the churches, wrote of “the hedge or wall of separation between the garden of the church and the wilderness of the world…”. With this imposing legal history behind it, the principle of non-intrusion of religious law into American civil law should stand on incorruptible footing. Yet, a survey of recent cases discloses principles of Jewish law relied upon by litigants and on occasion by judges in controversies before tribunals in the United States.

The Israel law on damages for breach of contract is contained in arts. 106–11 (112) of the Ottoman Code of Civil Procedure, 1879 (OCCP), and the law on damages for torts in the Civil Wrongs Ordinance, 1944, (CWO)— enactments from two different worlds, built upon different foundations. The tests of liability are as follows.

OCCP

art. 109. “If the non-performance of an agreement be not due to bad faith on the part of the person who has undertaken to perform it, the damages awarded against him shall be equivalent only to the direct and determinate loss suffered by the other party owing to such non-performance.”

art. 110. “If the non-performance of the agreement be due to fraud or bad faith on the part of the person bound to perform it, he shall be liable to pay damages which shall include both direct loss caused to the other party by such non-performance and also profits of which he may have been deprived owing to such non-performance.”

CWO

sec. 60, prov. (a), “…where the plaintiff has suffered damage, compensation shall only be awarded in respect of such damage as would naturally arise in the usual course of things and which directly arose from the defendant's civil wrong;…”

Among all the criteria of liability for damages (which will hereafter be analysed) one only is common to both laws—“direct” damage. But neither law is original; it will be more interesting, and more instructive for the elucidation of their meaning, to go back to the sources and to compare both sets of provisions with their source, and the sources with each other.

If an English lawyer looks at modern American literature on civil procedure, his first reaction tends to be one of incredulity or incomprehension; the literature deals with subjects of which he has never heard and seeks solutions to questions he has never thought of asking. After some reflection, however, it probably dawns on him that American scholars are writing against a background of assumptions about the process of litigation which he does not share and that those assumptions stem from developments which have occurred in the United States but which have not yet occurred in England or, for that matter, in the other countries of Western Europe. No one in England could write an article such as I received recently from the United States on “Conflict and Dissent in Class Actions” for the simple reason that the class action as it exists in the United States has not yet developed on our side of the Atlantic. Nevertheless, it is now clear that new demands are being made in Europe on the process of litigation, demands which may in time lead to developments such as have already occurred in the United States, and it is these demands which lead to the dilemmas to which my title refers. I want, therefore, to draw attention to two such demands—both very broadly stated—and to the dilemmas they produce, limiting myself mainly to England but with occasional glances elsewhere. This is not a lecture on American law, but it could perhaps be described as one on “pre-American” law.

The Commission of Inquiry into the Methods of Investigation of the General Security Service regarding Hostile Terrorist Activity dealt with the investigation methods which were practiced by the General Security Service (GSS) and which impinged on the rights of suspects.

Suspects under interrogation have a number of rights: the right not to be physically or mentally injured or otherwise mistreated, the privilege against self-incrimination and a number of ancillary procedural rights, such as the right to consult a lawyer. The Commission concluded that the interests of combatting terrorism justify the suspension of these rights in whole or in part. It thought that the privilege against self-incrimination need not be accorded to terrorist suspects and, furthermore, that psychological and physical forms of pressure may be exerted on suspects in order to overcome their resistance to interrogation. The Commission accepted that a civilised criminal procedure has to reflect minimal standards of respect for the integrity of individuals. However, it found justification for the departure from normal procedures in an analogy to the doctrines of necessity and self-defence.

This paper argues that the ICJ did not need to discuss the legality of the settlements in order to examine the legality of the fence. Following this argument, until the settlement issue is resolved, Israel has an obligation to protect the settlers. Thus, even those parts of the fence that are intended to protect settlements, legality does not depend on the legality of the settlements. Moreover, this article argues that the Court's analysis of the settlements' legality is unsatisfactory: its interpretation of Article 49, paragraph 6, of the Fourth 1949 Geneva Convention, deviates to a certain extent, from the meaning of the same terms used in other paragraphs of Article 49, and as such a more in depth analysis by the Court was required.

The law governing co-operative housing in Israel is an explicit example of legislative response to social and economic pressures, and psychological needs. In this regard it is, however, not unique, since similar pressures and needs with similar solutions are found in other countries. Here, as elsewhere, the same motivating forces have operated—the desire to possess a home of one's own for reasons of personal dignity and assurance, encouraged by calculated need to hedge against inflation; the increase in population leading to larger demands for housing accommodation, which remained for long generally unsatisfied because of pegged rentals under tenant protection legislation; the high cost of land and building, which called for the optimum utilization of land and raw materials; and the preference for apartment dwelling due partly to the closer social life that it affords, and to which the population was from previous experience accustomed, and partly to the widespread employment of women, which put a premium upon living quarters that required less time and effort for housekeeping. Of these forces, the population pressure, due to natural increase but far more to immigration after the establishment of the State in 1948, and the continuous rise in land prices were particularly significant in Israel.

A review of the different occupation situations evidences that these situations are characterized by a poor record of compliance with the law of occupation. The international humanitarian law (IHL) conventional enforcement mechanisms have not been activated and compliance with the law has almost exclusively relied upon judicial processes. However, since enforcement of IHL through adjudication operates mainly under the principles of criminal individual responsibility, this course of action has been of little relevance for occupation law insofar as the latter contains only few provisions the violations of which amount to graves breaches of IHL or other serious violations thereof. Disrespect for occupation law barely gives rise to criminal proceedings and therefore excessive focus on the latter procedures constitutes an impediment to the effective enforcement of this corpus juris. In addition, actual IHL mechanisms designed to induce compliance with occupation law do not allow for the appropriate control of the administrative and legislative acts of the occupant. In light of the contemporay forms of occupation and the tendency to broadly interpret the powers conferred on the occupant by IHL, administrative and legislative acts of the occupant should not be left without legal review. The present Article investigates the role and legal entitlement of different domestic courts in this respect after having previously examined the obstacles to exercise of jurisdiction by domestic courts with regard to the measures undertaken by the occupant within the framework of Article 43 of The Hague Regulations of 1907. The author argues that, despite their usefulness, domestic courts do not actually provide an appropriate course of action for legal review of the administrative and legislative measures promulgated by the occupying power.

The dramatic increase over the past decade in the quantity and sophistication of communications satellites in the earth's orbit raises new legal questions regarding the hostile disruption of satellite transmissions. As dependence on satellite communications in the military, governmental, economic and civilian spheres escalates globally, both states and non-state entities have become increasingly vulnerable to the consequences of disrupted transmissions, whether accidental or intentional. The implications of this new phenomenon for international humanitarian law (IHL) are better understood in the context of a preliminary analysis of the principles and norms underlying three regimes which now converge around satellite activities ad bellum. These are the substantive law regarding freedom of transborder communication, including relevant jus cogens prohibitions; international telecommunications regulation; and space law. The present analysis focuses on (a) the development of a taxonomy of the types of hostile disruption of satellite transmissions, (b) an examination of the three present normative regimes which govern international satellite transmissions in peacetime, and (c) the relevance of these three regimes for the development of applicable IHL. Overall, the article addresses the legal and policy aspects of an improved international response to the growing phenomenon of transmission disruption on the part of state and non-state entities both in peacetime and during war. Greater clarity regarding the applicable legal norms will enable both state and non-state actors to utilise satellite systems with increased certainty, reliability and effectiveness.