Colleagues, students and admirers of Professor Nathan Feinberg take pleasure and pride in presenting this issue of the Israel Law Review to the great Maître on his 90th birthday, as a small token of our gratitude. We respect Professor Feinberg for his vast and deep knowledge in international law in general; we admire him for his particular expertise and contributions in the study of legal problems related to the Jewish people, to the Zionist cause and to the State of Israel; and we are grateful to him for the leading role he played in the establishment of the first faculty of law in this country, at the Hebrew University in Jerusalem.

Nathan Feinberg was born in Kovno on June 6, 1895. His aptitude for learning was such that the severe numerus clausus did not prevent his admission to the Russian high school, from which he graduated with distinction in 1914. At the same time he was given a Jewish and Hebrew education privately. He then proceeded to the Faculty of Law of the University of Zurich, from which he graduated magna cum laude in 1918.

The issue of free navigation through international waterways is not academic nor need any hypothetical questions be posed. The concept of free navigation and international interest continues to confront the concept of sovereignty and national interest. To solve some of the acute problems thus engendered, it has become necessary to establish a body of rules within the scope of international law.

This paper is devoted to one category of international waterways, the so-called international straits. “Still waters run deep” and it seems as if narrow strips of water are often the most troublesome.

The most recent controversy concerning free navigation through straits arose in 1967 between Israel and the U.A.R. over the Tiran Straits. In the absence of an international power able to enforce the so-called international rule of free navigation or to convince the parties that the rule did not apply, the conflict was resolved by force of arms.

No agreement exists between the littoral States as to the legal status of the Gulf of Aqaba and the Straits. The most cited document in this connection is the Geneva Convention on Territorial Sea and Contiguous Zone of 1958. Examination of the preparatory and subsequent material of the 1958 Geneva Conference on the law of the sea, leads to the conclusion that the problem of straits in international law is not so much a question of substantive rule as a problem of defining international straits. The rule as such of free navigation is well established and was articulated long ago by Grotius. The right of innocent passage and the freedom of the high seas is today basically derived from the rule as defined by Grotius.

In difficult times, you need friends. The Legal Friends of the Hebrew University in London, and your many friends elsewhere in the world, have been thinking about you a great deal during recent months. As your President, Professor Magidor, wrote in his moving letter on 31 July, this university symbolizes the values of pluralism and tolerance. You exemplify the spirit of Israel, with your deep historical roots and your encouragement of open debate about the future. It is a great pleasure to be invited to address you today as the Lionel Cohen Lecturer.

My subject concerns the very limits of pluralism and tolerance: the application of human rights in an age of terrorism. When dealing with enemies, politicians need to be tough. In the latest volume of his compelling biography of Lyndon B. Johnson, Robert A. Caro describes the future American president's explanation to his mother in 1956 of why he did not think much of the chances in the presidential election that year of the Democratic Party candidate, Adlai Stevenson: “He's a nice fellow, Mother, but he won't make it ‘cause he's got too much lace on his drawers.”

The threat posed by terrorist enemies understandably provokes politicians to be tough. But how should judges respond when asked to rule on whether a state can afford to grant human rights to those who seek to destroy its very existence? Or, to put it another way, equally tendentious, should judges accept that the State cannot afford to deny human rights to such people if it is to maintain the values which make our society worth defending?

On May 28, 1967, one Solomon Hamatprest voluntarily presented himself before the military authority, after having failed for a number of years to report for registration and medical examination as required by a notice published under the Defence Service Law, 1959 (hereafter called the Law). Omission to fulfil a duty imposed by this law constitutes an offence punishable by two years imprisonment under section 5(a) (1) of the law; and where such offence is committed “with intent to evade defence service”, the maximum penalty is increased by section 35(b) (1) to five years prison.

Before the Six Day War those who shirked defence service had consistently been charged with the lesser offence. But in the wake of the War this offence had been covered by an Amnesty Law; and that was probably why Hamatprest, among others, had been committed for trial under the alternative graver offence, involving “intent to evade defence service”, which had been explicitly excluded from the amnesty.

In Azen v. State of Israel, the Supreme Court heard the appeal of a person who had been declared extraditable to France for offences of stealing by an agent and fraud, committed, according to the request for extradition, in France. One of the pleas raised against the decision of the District Court, in which Azen was declared extraditable, was that the specialty limitation was not guaranteed in the Extradition Treaty between Israel and France, as required by sec. 17 (a) of the Israeli Extradition Law, 1954. This section states unequivocally that —

whereas in art. 17 of the said Treaty, specialty is guaranteed in the following words:

i.e. under the Treaty, the specialty limitation is restricted, from the procedural point of view, to those processes involving physical, personal enforcement against the subject of extradition—he will not be “summoned” for interrogation, nor judged “in his presence”, nor “detained”; the Extradition Law, however, contains no such restriction, with the exception of detention which, by its very nature, requires physical enforcement.

Any attempt to review twenty-five years of legislation and judicial criminal procedure in twenty-five minutes is frustrating, since we have at our disposal one minute for each year of activity. This impossible task was imposed upon my colleagues and myself by the organizers of this important convention, apparently in the belief that Israelis are never deterred by difficult and even hopeless missions.

We shall divide our discussion on criminal procedure into two parts: firstly, a brief history of legislation, and secondly, an examination of the accused's fundamental rights as they are protected in Israel after twenty-five years of statehood, and a partial survey of the Supreme Court's contribution to finding a reasonable balance between the defence of human rights and a guarantee of effectiveness in combating delinquency and bringing delinquents to punishment. The entire discussion will be in general terms, and many of the details mentioned will be no more than selected drops from the ocean of criminal procedure.

My purpose in this paper is to present some propositions relevant to the analysis of legal ethical problems. In working my way to those propositions, however, I shall first discuss the need for them and explain why I deem them to be important.

My basic thesis is that historically the profession's codes of ethics constituted a jurisprudential anomaly with two unfortunate consequences. First, they had an undesirable effect on the conduct of lawyers in the representation of their clients. Second, and more importantly, they served to impede the development of a satisfactory law of legal ethics.

The first proposition is more difficult to establish than the second and I do not propose to dwell on it. But, if you accept the notion that lawyers have used their duty of loyalty to the client to arrogate to themselves the power of acting in accordance with the client's wishes regardless of the consequences to society or to others, I think you will agree with the point. This is not to say that lawyers always exercise that power, and few lawyers, I think, take seriously Lord Brougham's infamous dictum that an advocate “must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other” in defense of his client. But the fact that the dictum lives on tells us something about the lawyer's perception of his duty of loyalty. Ultimately, I suppose, the notion of the lawyer's duty of loyalty to the client must be attributed to the common law adversary system of trial, but the duty received its most fulsome expression in the profession's code of ethics. Courts never gave loyalty the imprimatur of approval that the profession stamped on it with the rules of ethics.

Anyone wishing to survey and evaluate the principal developments in Israeli labour law since the establishment of the State must relate both to the whole range of labour legislation, including legislation in the area of social security, and to the case law which has grown up alongside this legislation, which has interpreted it, and has completed and developed norms lacking in the legislation.

Labour legislation in Israel, particularly in its initial stages, as Prof. Raday mentioned, was the outcome of a planned initiative. The legislation was designed to express the political and social independence of the State, to adopt the accepted international norms in this area, and to integrate Israel into the international community.

I am honoured and pleased to comment on the paper on “Punishment Civil Style” by my good friend Marc Galanter, with whose basic thesis I am in complete agreement. I would take as my starting point and, indeed, emphasize, Galanter's definition of punishment as the “imposition of a harm, injury, deprivation or other bad thing on someone on the ground of some commission of some offence. The infliction of harm on the offender may be viewed as a goal (or a proximate to a goal of justice) or it may be viewed instrumentally as a mean to social betterment through rehabilitation, incapacitation, deterrence, reassurance, and so forth”.

Galanter well points out that, as such, punishment is not limited to the criminal justice system, but is employed also in other societal systems, including that of civil justice.

Yet, I fear that he may mislead us in focusing in his paper so heavily on punitive damages, which he maintains “are the most visible and clearly legitimated manifestation” of the principle of “civil punishment”.

The issue of capital punishment is a very wide one; it has been discussed for centuries by philosophers, theologians, legal scholars, social scientists and reformers of all kinds. These discussions have involved a variety of types of reasoning: some are purely theoretical, some are highly technical, statistical or, at a further remove, methodological analyses. But they have always revolved around a simple, basic question: for or against? This is basically a moral question; because of its general character, because it has to do with moral considerations of a rather general nature for abolishing or retaining a legal institution, it also presents a problem for moral and legal philosophy.

A. Soundness of mind at the time of committing an offence is complementary to mental maturity as a condition for the criminal capacity of the perpetrator and is thus a condition for the criminality of his act. Accordingly, the perpetrator's mental disorder limits the criminality of his act, although not every such disorder has such radical legal consequences. If the disorder is cognitive, it must be such as to prevent the person from understanding the physical or social meaning of his conduct: if it is volitional, it must be such as to prevent him, at the time of his act, from choosing between performing the act and refraining from doing so. These are symptoms of mental disorder that negatives the criminal capacity of a person, and each of them is a necessary, but not a sufficient, condition. It is essential that this be due to a disease of the mind or an organic defect of reason. The disorder in question is therefore a radical one, and one that is also chronic if not permanent in nature, as opposed to temporary or less deep-rooted conditions such as a disturbed state, a trauma or emotional condition, impulsiveness in certain matters or urges that deviate from the normal in certain areas.

B. The following remarks are confined to the absence of criminal capacity on the volitional level, to which we shall refer in short as “volitional insanity’. This is the case where the person at the time of his act did not have a choice between acting or not acting due to a disease affecting his mind. This case is also referred to as the commission of an act as a result of an irresistible morbid impulse.

On two notable occasions in the past two years, it was found necessary to use legislation in order to buttress the potency of general collective agreements. The first of these occasions was when legislation was used to give overriding legal force to a general collective agreement between the Histadrut and the Government incorporating the tax reform recommendations of the Ben Shachar Committee. The second was a similar use of legislation with regard to the general collective agreement between the Histadrut and the Government incorporating the special increments recommendations of the Barkai Committee. The two collective agreements concerned shared one important quality: They both purported to derogate from rights previously enjoyed by employees under existing collective agreements. One of the reasons for legislative intervention to support these agreements was the existence of doubt as to the legal effectiveness of their attempt to derogate from the individual employees' rights.

The source of the doubt as to the legal effectiveness of such agreements lies in the existence of two distinct levels at which a collective agreement functions: the collective and the individual levels. At the collective level, conditions are determined by the collective bargaining parties, the employer or employers' organisation on one hand and the employees' organisation on the other; at this level, the collective agreement is a consensual arrangement between the parties to it, the parties fix the terms and have a contractual right to demand their enforcement. The terms fixed at the collective level take effect, however, also at the individual level; the individual employees of an employer bound by the agreement are both bound by the agreement and entitled to enjoy the rights bestowed by the agreement. The Collective Agreements Law gives forceful expression to the effect of the collective agreement's personal provisions at the individual level, giving them immediate and mandatory effect as part of each individual employee's employment contract.

It is certainly difficult to assess whether, and to what degree, international anti-slavery legislation has been successful. The facts are that in the nineteenth century, legal and religious motivations were conjoined with technical developments creating a situation in which the manpower problem came to differ in essentials from that which had sustained slavery, both in “exporter” and “importer” countries. In the result slavery was abolished west of the Atlantic, and with it slave trade on the western shores of Africa. It soon transpired, however, that the disintegration of the westward-bound trade only reinforced its eastward branch. Although attempts were made at an international level to extend to the East the western experience in abolition of the slave trade, they did not meet with full success, and, apart from the protection of women and minorities, abolition of slavery remains today the main problem of group protection confronting the United Nations Organization. At present, the U.N. is negotiating for its third set of “teeth” with which to confront this problem.

The standing of the United Nations in this matter, is that of an Agent of Protection—a function which has in the last two hundred years or so developed in each case where international legislation related to groups of beneficiaries (such as slaves, minorities, prisoners-of-war, etc.) which have no independent standing as subjects of International Law, and therefore are incapable of negotiating for themselves (or through representatives appointed by them) the conditions of their protection in respect to sovereign States as obligatees, and even less of providing for a control of such protection and the obtention of remedial action. The range of effectiveness of such Agents of Protection is obviously indicated with the effective influence which such agencies may exercise in the orbit of Order (and Protection) through Authority—as an Order subsidiary and supplementary to the Order (and Protection) through Consent.