Legal procedure does not enjoy great popularity. The layman resents it, since it prevents him from conducting his case by himself and forces him to resort to professional advocates. But even the jurist's attitudes to procedure is far from positive: he sees it as a mere “adjective” branch of the law that detracts from the importance of “substantive” law. Moreover, it has often emerged that the labyrinth of procedure does not lead to the triumph of the substantive law, but rather to the perversion of justice. A person expert in procedure has, as it were, wide scope in which to prevent, or, at least to distort, the revelation of the truth.

From time to time, a judge may be heard speaking out against such abuse of legal process, but mostly, his is a voice crying out in the wilderness.

Historical developments have left a greater impression on the law of property than on many other branches of law. Land law, which constitutes a substantial portion of the law of property, is of particular import in this regard. The characteristic feature of land is its permanence, which is manifested in place, time and quantity: place – land being immovable; time – land having a continuous existence; and quantity – the amount of land basically not changing. This threefold permanence exposes land law to the continuous influence of historical forces, the effects of which are lasting. The phenomenon can be observed in the legal systems of many countries, including Israel.

In this article, I will consider several of the general questions raised by the rule that has long guided Israeli courts when faced with a claim of irresistible desire. The claim can be portrayed thus: “Indeed, the defendant perpetrated the act constituting the offence, and did so consciously (as distinct from certain situations of automatism), while aware of the nature of his conduct and knowing that his conduct was unlawful (as opposed to instances of mistake of fact or law). However, although there was no justification for his conduct (as distinct from certain situations of necessity), he has an excuse in that the conduct was the result of a desire he was unable to resist”.

This claim may be employed as a defence intended to show that the defendant is not morally culpable for his conduct. But, in this article, I shall consider the claim of irresistible desire as a defence intended to exempt the defendant from criminal responsibility. The two are not necessarily related. Criminal responsibility — as opposed to moral culpability — is a function of law. And what the law establishes in one country may differ from what it establishes in another.

An oft-repeated proposition asserts that fraud “vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts, ecclesiastical or temporal”. Fraus omnia corrumpit. That great master of the common law, Willes J., said in 1863: “…a judgment or decree obtained by fraud upon a court binds not such court, nor any other; and its nullity upon this ground, though it has not been set aside or reversed, may be alleged in a collateral proceeding.”

Nevertheless, such declarations cannot be accepted without reservation. Let us illustrate. A man sues for detention of his goods. The defendant asserts that plaintiff's case is a concocted deception; that the documents are forged and that the plaintiff himself and his witnesses are deliberately perjuring themselves. The defendant maintains, in fact, that the goods in question are, at the very time of trial, being concealed by the plaintiff. The court goes fully into the testimony, rejects the allegations of perjury and fraud, and awards the plaintiff damages. The absolute truth will perhaps never be known. What we do know is that the unsuccessful defendant is henceforth estopped by res judicata. He cannot resist the effect of the judgment, still less can he set it aside, unless he can avail himself of fresh evidence, discovered since the trial; and unless, moreover, he can satisfactorily account for not having known this evidence and made use of it at the trial. This has been clear law since at least early in the 17th century when it was expressly laid down by Bacon L. C. Indeed, the need for new evidence furnishes a major distinction between impeachment (or “review”, as it is also called) of a judgment, on the one hand, and an appeal proper, on the other. This distinction is further reflected in the rule that appeals must be lodged within a prescribed period of time—not so impeachments or reviews.

The purpose of this essay is to give an aperçu of the varying approaches for the disposition of child custody cases developed by American law during the past thirty years and the Rabbinical Courts of Israel (hereinafter referred to as the Beth Din), a contemporary repository of the sources of Jewish law. The study that follows is not to be read as “a history of child custody” in the sense of tracing this legal topic as it might have developed over the course of time.

Though there will be occasion to allude to the relevant principles of American law and principles of Jewish law, it is the jurisprudential perspective rather than the substantive content which is the primary theme.

I. A parent's relationship to his child may be viewed as a status carrying with it certain responsibilities and duties owed to the child with reference to care, education, and support. When a family breaks up through death, divorce, separation, child neglect or abandonment, the individual who performs most of the parental functions, who lives and cares for the child is said to have custody of the child, even though someone else may exercise some other parental rights and obligations.

In determining a custody dispute between natural parents and proceedings involving a natural parent and a third party, American courts have frequently based their decisions on two doctrines.

The notion that a security interest could be created in any kind of property through registration rather than through transfer of possession seemed, until a few years ago, to be impractical and undesirable. When the Pledges Bill was debated in the Knesset, in 1965, the Minister of Justice objected to such a notion, saying that it was too revolutionary, and that it would cause many technical difficulties. Yet, when the debate on the Pledges Bill was over, a new Pledges Law was passed which introduced this very revolutionary notion of registration as a possible substitute for transfer of possession.

The Pledges Law, 1967, sec. 4, provides that:

Intellectual work on the law of war suffers from chronic isolation. The commentators on the Rome Statute are international lawyers who pay no attention to the work either of theoretical criminal lawyers or of the philosophers. The philosophers—Jeff McMahan as an outstanding example—ignore the legal details that dominate the books of the international lawyers. Criminal lawyers have much to contribute to the discussion of international law but they seem not to be interested, and so it goes. Writers with limited audiences, living in closed worlds, are unaware of what they have to learn from those with a different take on the field.

The rules of criminal law that govern participation in crime often include special provisions with regard to accomplice liability for the commission of collateral offenses by the principal in the course of the unlawful undertaking. While some Anglo-American jurisdictions limit accomplice liability to cases where the commission of the collateral offense is effectively contemplated by the participant, other jurisdictions, including Israel, also provide for punishment of the participant where the collateral offense is reasonably foreseeable. Accordingly, participants are held liable for crimes that are perpetrated incidentally to the commission of the projected crime, on the basis of an objective, rather than subjective, foresight standard. Whether this deviation from the prevalent paradigm of accomplice liability is justified in principle and policy constitutes the main focus of this article.

Thomas Aquinas, in his famous argument on human law, classified the process of sentencing as an art, as opposed to a science. Human law, he argued, or at least good human law, “has the force of law in that it flows from natural law”. And yet, Aquinas further maintained that “commands can be traced to natural law in two ways; one, drawn deductively like conclusions from premises; two, grounded on it like constructional implementations of general directives. The first process is like that of the sciences. … The second process is like that of the arts where a special shape is given to a general idea, as when an architect determines that a house should be in this or that style”. Hence while a proposition such as “you must not commit murder” can be deduced from “you must not commit harm”, no similar deduction can determine the appropriate punishment for the crime: “Natural law pronounces that crime has to be punished without deciding whether this or that should be the penalty; the punishment selected is like a determinate form given to natural law”, concludes Aquinas.

“I should have thought this result, in the language of one of your Lordships, ‘manifestly impossible’; but rules of law have to be tested in these days, and must survive the application of first principles.” Lord Atkin, in Banco de Portugal v. Waterlow & Sons, Ltd. [1932] A.C. 452, 486–87.

With the arrival upon the scene of the House of Lords' decision in Tomkinson v. First Pennsylvania Banking and Trust Co. [1961] A.C. 1007 it is now settled that whenever judicial occasion may arise to convert foreign into English money, the conversion should be performed in accordance with the rate of exchange prevailing on the day when the money first became due and was not paid. This “breach-date rate” is preferred to the rate at commencement of suit, to the rate during trial or at judgment, to the rate on the day of actual payment, and to any other possible rate. It is to be followed regardless of whether the shift in the exchange results in appreciation or in depreciation of English money vis-à-vis the foreign money in question, as also without regard to whether it is the creditor or the debtor who benefits therefrom. Conversion in accordance with this rate is also preferred to an adjustment of the rights of the parties on equitable lines, as by judicial compromise between creditor and debtor.

The extent to which the Roman government which had conquered the Land of Israel (Palaestina) as well as large areas outside of it (collectively termed the Roman Empire) permitted Jewish courts to rule in matters regarding Jews is a question which has attracted relatively little attention. In his fundamental book Les Juifs dans l'Empire Romain the renowned scholar Jean Juster sums up the situation of the Jewish judiciary as such: “After the fall of Jerusalem, the Jews continued to bring their cases not only before Jewish judges (whom it was possible to define as arbiters) but even before actual Jewish courts authorized to judge according to Jewish law and granted authority to do so by the Romans. The Jewish court received the status of a regular court the moment one of the Jewish sides submitted a claim to it, thereby effectively preventing the submission of the case to a rival non-Jewish court. The Jewish court thus received the authority to summon the defendant, to force him to appear, and to ensure that its rulings would be enforced. Its rulings would be recognized by the Roman authorities as coming from legitimate judicial authority”.

This Article examines how the advisory opinion of the ICJ on the “Legal Consequences of Constructing a Wall in the Occupied Palestinian Territory” dealt with the status of the territory through which the separation barrier passed and the question of the status of the “Green Line” which delineates this territory.

Israel has accepted that the rules of belligerent occupation are to be applied to the territory, the Court however did not suffice itself with applying the laws of belligerent occupation but chose to follow current UN precedents in the use of the phrase occupied “Palestinian” territory. The Court does not attempt to resolve the dilemma of how the West Bank could be defined as occupied “Palestinian” territory when its status as occupied territory presumably derived from Israel's seizure of the Area from Jordan and a Palestinian State had never existed there, or anywhere.

Although the Court disclaimed any intention of determining boundaries, nevertheless the Court treats the Green Line as Israel s Eastern boundary notwithstanding that neither Israel nor any Arab State recognized it as such. By its decision, the Court apparently however has recognized Israel sovereignty West of the Green Line, including West Jerusalem, perhaps an outcome not foreseen by all who initiated the application to the Court.