This comment to Jeff McMahan's thought-provoking contribution does not aim to take issue with the interesting and rather compelling philosophical arguments he raises in support of moral-based norms. In the same vein, the comment does not criticize the way in which McMahan describes the international law doctrines governing war situations—a description which is generally accurate. Instead, I comment on the policy reasons that have led international law-maker to move away from some of the morality-based distinctions and normative choices expounded by McMahan. Hence, my focus in this comment is on the pragmatic constraints that limit the influence of moral ideas on the laws of war. Of course, the resort to pragmatism may be in itself morally justifiable, as the insistence on the application of pragmatic consideration is often linked to the promotion of laudable goals—aversion of war and reduction of casualties and damage. Hopefully, a better understanding of the reasons underlying the rejection of “pure morality” in the context of the regulation of war would contribute to a critical assessment of the desirability of McMahan's ideas and to identification of the institutional conditions that could facilitate their application.

We know nothing of the local organization of the Jews in the Visigothic kingdom. It seems likely that their communities (called conventus in the statutes) preserved the same framework as they had had under the Roman rule. Recognized by law as long as the Jewish cult was licit, the Jewish communities were to be deprived of their legal existence by those kings who compelled the Jewish to baptism.

Thus we have no information about their internal organization during either the Arian or Catholic regimes, save for some fragmentary data which have reached us concerning two Jewish communal institutions.

I am the fortieth person to have given the Lionel Cohen lecture since 1953 when Professor Arthur Goodhart gave the first lecture in this series. The lecture was founded by, and in the name of one of British Jewry's most distinguished figures and the list of Lionel Cohen lecturers is illustrious indeed. It is a great honour to have been asked to join their company. For me it has an additional pleasure — my late father, Dr. Walter Zander, was closely involved in the establishment of the lecture and in its development for its first eighteen years. From 1944 to 1971 my father was Secretary of the British Friends of the Hebrew University and the annual event of the Lionel Cohen lecture and the subsequent “report back” dinner at Lincoln's Inn was a part of his work which he always enjoyed and regarded as of importance. I obviously regret that he did not live long enough to see his eldest son honoured in this way.

In the decisions of the Israel Supreme Court delivered since the establishment of the State, one sometimes comes across the express or implied statement of the rule that:

The object of this article is to clarify a few aspects of this rule (which, for the sake of brevity, will be referred to as the rule of “constructive intention”).

When comparing the structure of the criminal procedure in the civil and the common law systems, one is soon confronted with the wide-spread belief of deep differences between the “inquisitorial” tradition on the one hand, and the “adversary” on the other. Consequently, one would expect differences between the Israeli criminal procedure, as mainly based on common law tradition, and the German procedure, as an example of a continental civil law system. If one takes a closer look, however, it appears that those assumptions of deep differences, at least in view of the practical result, are to a great extent mistaken because of foregone prejudices.

In the Israeli legal system, trial courts determine offenders' punishments. Israeli law only sets maximum penalties for crimes and offenses, and rarely provides for mandatory punishment. Even the few instances of mandatory punishment are subject to the judicial discretion recently bestowed by amendment 39 of the Penal Law authorizing the court to impose a sentence lighter than the mandatory punishment, under special circumstances. The broad discretion bestowed by amendment 39 created a situation in which in practice the law would no longer provide for substantive mandatory sentencing. In view of this, the reform of amendment 39 was revised before it went into effect by Amendment 44 of the Penal Law. The current law stipulates that under mitigating circumstances the court may set a penalty lighter than the mandatory one prescribed by law, but that the court must state its reasons for so doing. Discretion is witheld in cases of mandatory life imprisonment for murder, the most important instance of mandatory punishment in our legal system. The law further stipulates that only in three well-defined circumstances may the court pass a reduced sentence for murder.

In modern evidence theory two main theories of legal factfinding have emerged. One of these is the mathematical probabilistic approach, which claims that the universal rules of mathematics apply to legal factfinding as to any other rational decision-making. The opposite approach, of Tribe, Nesson and others, contests this view. Those opposing the mathematical theory have done so mostly on grounds of legal policy, which I shall not be concerned with. However, some of the sharpest criticism, at least from the point of view of the adherents of the mathematical explanation, has been of the soundness of the mathematical explanation. In certain instances typical to the legal process, the mathematical approach has been claimed to lead to absurd results which contradict common sense and legal doctrine.

In this paper I will claim that the rules of mathematical probability must apply to legal factfinding and if fallacies in its application are exposed, their existence must be due to error in the way in which the rules have been applied. I will argue and try to prove that the concept of relevance, an essential concept to any theory of legal factfinding, has been disregarded in mathematical probability theory.

This article compares the law of foundations (charities) in Germany and Israel. What is a foundation and what it is created for, may receive different answers in different legal systems. When an Israeli jurist refers to hekdesh, he is not referring to the same concepts included in the German Stiftung. These differences find expression both in practical and theoretical matters. For example, German law recognizes the foundation as a legal personality, a characteristic lacking in Israeli law. Moreover, in Germany a foundation managing a business enterprise, or an enterprise adopting the legal form of a foundation, is an accepted phenomenon, but this is not accepted in Israel.

To understand what a foundation is, it is necessary to distinguish between the different types of foundations: on one hand public or private ones, and on the other hand religious and secular foundations. This article discusses the methods of creating a foundation (mortis causa or inter vivos) and examines the elements needed to create it: purposes, assets (one of the central points in Foundations Law is to ensure their efficient use) and management. The comparison does not obviate the problem of state supervision, needed to ensure the right of the beneficiaries and of the entire community to correct usage of the endowed resources.

In the final analysis, the paper stresses the importance of comparative law as an instrument aimed to broaden legal theory and enrich the dialogue between jurists of different countries.

In a democratic country an independent justice system plays a major role in protecting human rights and the rule of law. However, an independent judicial system is at risk from a number of factors that derive from outside the sytsem as well as from within. The external dangers facing judicial independence are often discussed; whereas the internal perils that weaken the system as well as judicial independence, are far less known. This article will focus on the danger from within and will discuss the judicial administration's influence on human rights, specifically the right to due process under the law.

An Israeli lawyer who reads Professor Engel's very interesting remarks “On the Evidence of U.S. Treaty Law” will feel like the poor man who reacted to a rich man's complaints by saying: “For you the diamonds are sparse, for me the soup is thin”.

In Israel there are two official publications which give information about treaties:

1) Kitvei Amana—Israel Treaty Documents; and 2) Yalkut HaPirsumim—Government Notices. The Ministry of Justice is responsible for these two publications but it follows the advice of the Foreign Ministry in all substantive matters concerning the publication of information on treaties.

The treaties to which Israel has become a party are published in Kitvei Amana. So far, some 22 volumes have been published in this series. Bilateral agreements are published in the two languages in which the treaty was concluded, i.e., Hebrew and the official language of the other party. As to multilateral conventions, a Hebrew translation of them is published, together with the original text in one or two of the official languages of the treaty. For example, the English and the French version of the U.N. Charter were published, as well as a Hebrew translation. Together with the text of the treaty, some additional relevant information is also given: a list (with dates) of the signatures and ratifications of the treaty, date of its coming into force, date of its coming into force for Israel.

The late Sir Hersch Lauterpacht once expressed the view that “if international law is, in some ways, at the vanishing point of law, the law of war is, perhaps, even more conspicuously, at the vanishing point of international law”. This led him to the conclusion that the international lawyer must therefore do his duty, in the three particular areas to which he was then drawing the attention of his readers, “with determination though without complacency, and perhaps not always very hopefully”. The three spheres which Lauterpacht considered as meriting the attention of international lawyers at the time at which he wrote, 1953, were “further legal regulation of the humanitarian fringe of the problems involved in the use of new weapons of war, sustained exposition and clarification of the far-reaching provisions of the 1949 Geneva Conventions, and the further clarification of matters not covered by the Geneva Conventions, including the implication of the principle that the law of war is binding not only upon States but also upon individuals”. This great jurist did not live to see the current endeavours that are being made to carry out a revision of the international law of war and the increasing attention that is being paid to the humanitarian content of that law, and even more specifically, to the quest for better and more effective means of implementation of that law.