The Israeli Supreme Court addressed the issue of kidney donations from the mentally incompetent in Attorney General v. A and Others. The Supreme Court reversed a District Court decision which permitted the transplant of a kidney from a 39 year old mentally incompetent son to his 65 year old father, who was suffering from severe renal failure. In permitting the transplant the District Court noted the uncontested fact that the son was receiving the best possible care from his father, and reasoned that it was in the best interests of the son to give up a kidney in order to continue receiving his father's devoted care. In reversing the District Court's decision, the Supreme Court emphasised the need for the establishment of a “clear and substantial benefit” to the legal incompetent before any of his or her organs are transplanted to another individual. The Court was not inclined to accept the more subjective substituted judgment approach found in some similar American cases. The interests of other individuals, or even of the community as a whole, may not be preferred over those of the incompetent person. In the present case, no such “clear and substantial benefit” accruing to the son from the kidney donation had been demonstrated. Amongst the reasons given by the Court for this finding was the existence of a doubt as to the chances of a successful transplant in light of both the father's age and the seriousness of his condition. It was also unclear why the son could not receive the same quality of care from his siblings as he had received up to now from his father.

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.

The International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) were created to deliver accountability for the atrocities committed during Rwanda's genocide of 1994 and Sierra Leone's civil war of the 1990s. The capacity of these courts, however, like other international criminal tribunals, is limited in terms of the number of persons they can prosecute. If most perpetrators evade justice, the ability of international tribunals to deliver accountability may be seriously undermined. To mitigate this risk, national justice systems should deal with the perpetrators who are not addressed by international tribunals. When national systems do not do so (or fail to do so effectively), international tribunals are well placed to encourage (or improve) national atrocity-related judicial proceedings, thereby increasing their chances of delivering accountability.

This article assesses empirically the impact of the ICTR and SCSL on national atrocity-related judicial proceedings in their target countries, thus contributing to an overall assessment of these tribunals. The article also compares the national impact of the ‘pure international’ ICTR to that of the ‘hybrid’ SCSL and tries to identify features that affect the national impact of an international tribunal. Understanding the interactions between international and national justice systems, and the features that affect the national impact of international tribunals, is particularly important given the shift to ‘positive complementarity’ at the International Criminal Court.

The article traces a set of regional images in international legal and diplomatic documents leading to the establishment of the Palestine Mandate (1915–22). The analysis suggests that at that important crossroad, when a new world order was imagined and negotiated, a broad, layered and diverse vision of a comprehensive ‘region’ was actively present in the minds of very different actors within the framework of empire. A vast territory was reconstructed as opening up for new ways of rule and of influence, for enhanced development and for dealing with strictly European globalised issues. That this powerful regional vision has been disregarded because of the weight of the subsequent territorial geopolitics in the Middle East is not surprising. Today, however, when classic international law responses – the state on the one hand and international cooperation on the other – prove weak and unstable, and especially vulnerable to ‘new regional threats’, it may be worthwhile to look back at a period in which the region was still imagined as a place of political possibility.

The restriction of personal liberty is a critical feature in all conflicts, whether they are of an international character or not. With the increased prevalence of non-international armed conflict and the drastic proliferation of non-state armed groups, it is critical to explore whether such groups can legally detain or intern persons during conflict. This article proposes that there exists a power and a legal basis for armed groups to intern persons for imperative security reasons while engaged in armed conflict. It is suggested that this authorisation exists in the frameworks of both international humanitarian law and international human rights law, as it does for states engaged in such conflicts. It is proposed that such power and legal basis are particularly strong for armed groups in control of territory, and can be gleaned from certain customary law claims, treaty law, as well as some case law on international humanitarian law and human rights. Certain case law of the European Court of Human Rights on detention by de facto non-state entities conceivably reflects a change in traditional thinking on ‘legal’ detention by armed groups.

The absence of control of a territorial state over part of its physical territory is closely associated with online human rights violations, on the one hand, and the state's restricted (but not necessarily absent) control over the cyberspace, on the other. Notwithstanding the lack of its effective territorial control, the territorial state continues to be entitled to exercise its sovereignty over both territory and cyberspace. The consequence of sovereignty in international human rights law is the territorial state's presumed jurisdiction over its entire national territory. The article claims that the territorial state, while lacking the effective means to control its cyberspace fully as it does in the government-controlled areas, has continuing jurisdiction, and consequently obligations, to protect human rights online from wrongful acts that originate, occur or have effect in the area outside its effective control. Treaty monitoring bodies have recommended various positive measures that any territorial state is required to take while seeking to restore its ‘internet sovereignty’ in the separatist region, depending on the means in its power that are feasible in the particular situation.

The general assumption that underlines Richard Posner's argument in his book Not a Suicide Pact is that decisions concerning rights and security in the context of modern terrorism should be made by balancing competing interests. This assumption is obviously correct if one refers to the most rudimentary sense of balancing, namely, the idea that normative decisions should be made in light of the importance of the relevant values and considerations. However, Posner advocates a more specific conception of balancing, both substantively and institutionally. Substantiality, he argues for balancing based on a consequential moral theory that rejects the ideas of deontological rights and particularly absolute or very weighty deontological rights. More specifically, it seems that Posner assumes a utilitarian theory that also rejects intrinsic concern for distributive justice. Institutionally, Posner argues that this method of reasoning should be adopted by judges when interpreting the Constitution. These substantive and institutional background assumptions are of course controversial, but I do not dispute them in this Article. My critique concerns Posner's conclusions based on these assumptions. Posner's main claim is that given the magnitude of the danger of modern terrorism, even a small probability that an act of terror may occur justifies extreme anti-terror measures.

How can regulators keep up with sea changes in dynamic markets? This article proposes the use of competitive forces to generate innovative regulation. In markets where national, social, cultural, economic or other interests must be maintained in the face of evolving risks, heightened uncertainties and dynamic technological developments, regulators have to learn by doing.

This article proposes the novel concept of intra-regulatory competition (IRC), a powerful method for developing innovative regulatory solutions by staging a contest between different regulatory regimes imposed simultaneously on market participants in a given jurisdiction. The article describes the principles of and justifications for IRC, conditions for its effective implementation, its potential benefits and drawbacks. IRC is analysed against the backdrop of similar concepts such as randomised law, experimental law and inter-jurisdictional competition. Finally, the article argues that the regulation of media content in order to promote cultural pluralism and the regulation of computerised trading in securities and futures markets are fields that are ripe for and compatible with the application of IRC.

This Paper argues that the traditional international legal discourse on occupation fails to reflect the condition of international relations, and their governability by international law, at the turn of the 21st century. This Paper suggests re-conceptualizing the concept of occupation by linking it to the discourse of failed and fragile states and the responsibility to protect.

A contemporaneous understanding of occupation needs to reflect its transforming relationship to sovereignty. Occupation represents a state of interference with the external aspect of sovereignty, which ultimately infringes also on the state of internal sovereignty. In contemporary world politics, occupation arises also from a chain of successive situations interfering with sovereignty wherein internal sovereignty becomes “vitiated” (“failed and fragile state”), and creates a condition conducive to interference with external sovereignty. The outcome of this order of impingements on sovereignty represents a state wherein sovereignty was suspended.

The condition of suspended sovereignty triggers the new norm of the responsibility to protect. This Paper submits that re-vitalization of the concepts of leasehold and trusteeship offers an elegant, perhaps face-saving outlet, hence potentially constructive approach to empower the failed and fragile state in re-establishing its sovereign plenary control over its territory and ending an occupation-like situation.

The analysis of the Lebanese situation is an example of the arguments raised in this Paper and does not fit the traditional post World War II (WWII) occupation legal mould for neither belligerent nor non-belligerent occupation. The complex inter-state relationship linking Lebanon-Syria-Iran-Israel, and which is intricately interlaced in a state-to-non-state actor (NSA) web as played out in the relationship between Israel-South Lebanon Army on the one hand, and between Iran, Syria and Lebanon-Hezbollah on the other hand, serve to illustrate the new 21st century conditions. These conditions press for an updating of the traditional understanding of occupation.

Can the members of a company in general meeting ratify a transaction of the directors by simple majority, when the latter—in breach of their fiduciary duties—have not acted “bona fide in the interests of the company”? This question is likely to prove of importance in a number of different contexts. In Bamford v. Bamford it arose in connection with the validity of an act of the directors in the sphere of the company's relations with a third party—the contention that the act was invalid having been made by the minority shareholders, who objected to ratification, and not by the third party himself. The possibility of ratification gives rise to two questions: is the general meeting of the company the competent organ to exercise this power? And, assuming that it is, can the act done in breach of a duty be ratified by it by simple majority? In the Bamford case it is only the former aspect of the problem that is considered.

The articles of the company vested the power to allot shares in the directors. In exercising this power the directors failed to act “bona fide in the interests of the company”. Their act was ratified by the members in general meeting by simple majority and the validity of the ratification was challenged. Both the judge of first instance and those sitting on appeal decided that it was valid. Plowman J., in the Chancery Division, held that, since the directors had been actuated by an improper motive, they thereby lost their power of allotment, which accordingly vested in the general meeting, as the organ of the company with residual power in this respect. The general meeting—he went on to hold—could ratify the directors' action by simple majority. Harman L.J. and Russel L.J., in the Court of Appeal, reached the same conclusion— but for different reasons. In their opinion, the fact that the directors allotted the shares for an improper motive does not mean that what they did was in excess of their powers; the allotment simply became voidable. The power to remedy the defect—they held—is in the hands of the general meeting, which can exercise this power by simple majority.

It is well-known that Jewish law forbids ona'ah “overreaching”; that is to say: the act of wronging a person by selling him an article for more than its real (market) value, or, conversely, purchasing from him an article for less than its real value (M. Bava Mezia 3.4, seq.). According to (anonymous—stam) Tannaitic halacha (law), the right to claim against ona'ah was always in the hands of the injured party, and whichever side constituted the injured party (be it the vendor or the purchaser), that side had the right to choose either to declare the transaction void, or to make up, or receive the difference (T. Bava Mezia 4.3). Another view, that of R. Judah (ha-Nasi, flor. c. 170–220), is however recorded. R. Judah states that regardless of which side is the injured party, the choice as to whether to annul the transaction or to settle the difference always lies in the hands of the vendor (B. Bava Mezia 50b, Y. Bava Mezia 4.3). This (minority) view was rejected in the Amoraic period by the great Palestinian scholar R. Johanan (flor. c. 250–79), so that the later halacha follows the anonymous (majority) Tannaitic ruling (Y. Bava Mezia 4.3).

The degree fixed in Tannaitic sources for ona'ah was one-sixth (M. Bava Mezia 4.3, 7; T. Bava Mezia 3.9). That is to say, anything less than one-sixth above or below the market price was not considered ona'ah, and the transaction was valid, while one-sixth or more constituted ona'ah, invalidating the transaction, unless the injured party (stam) or the vendor (R. Judah) agreed to settle the difference.

The process of codifying Israeli private law began in the mid-1960's. Since then, numerous laws have been enacted, each devoted to a certain field or transaction (land law, pledges, sales, etc.). The idea was, and continues to be, that after the enactment of the separate laws is completed, they will be combined in order to create an integral, complete civil code. This stage of enactment is nearly finished, and at present a jurists' committee is considering changes and adjustments required in any of the laws in order to fit them together into one code. This method of legislation by stages has many disadvantages, which have been pointed out in the legal literature. However, there are also advantages. The new laws in the sphere of private law are not inspired by a single legal system or by any particular existing code; rather, they constitute an original, modern Israeli creation, based on comprehensive comparative research and implementation of new, original ideas. In the absence of an established Israeli legal tradition, and absent rooted legal concepts or terminology, the Israeli legislature must create a code which does not grow naturally out of an existing legal system. The code itself will constitute the basis for future development of the system.

From the establishment of the State until the present day, two quiet “revolutions” have occurred in Israeli law — the first in the area of public law, and the second in the area of private law. In public law we have witnessed the incorporation of a functional constitution — partly in the form of the Basic Laws, prescribed by the Knesset as constitutive authority; and partly through the consolidation of human rights, the handiwork of the Supreme Court engaged in judicial lawmaking. In private law we have witnessed the coalescing of a civil codification — mainly the product of the Knesset as legislative authority with judicial lawmaking “between the cracks” of the legislation.

Any system of justice purporting to be civilized must pursue two basic principles: (1) that people similarly circumstanced are to be treated equally under the law; (2) that people administering the law are not permitted to act arbitrarily or to prescribe individually the rules governing their actions and decisions. Both of these principles were persistently violated through well over half the twentieth century in the sentencing of people for crimes in the United States. The steady violations were produced by a combination of sentimental good intentions, puritanical severity and irrational misconceptions concerning the effects of punishment and the capacity of those commissioned to administer punishment. As the century wanes, the long course of error has been identified. This is a time of intensive sentencing reform. We are vexed now in a familiar way by doubts about the efficacy and the side effects of the reforms.