We are faced with a new reality where our reliance on internet access to fulfil basic civil tasks is threatened by increasing personal and societal cyber vulnerability. This dichotomy of dependence and vulnerability requires a new framework for understanding the legal and human rights status of this evolving technological reality. A number of theories have sought to explain how internet access could attain the status of a human right. These include reliance on the freedom of expression protection offered by the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. More recent approaches have suggested that international customary law could apply, or that internet access could attain the status of an auxiliary human right. Despite repeated demands by international institutions to address modern cyber challenges through a human rights lens, this assortment of legal approaches has failed to garner a consensus view in the international community. The article reviews the merits of each of these arguments, and grounds the debate in the lens of this reality of dependence and vulnerability. Of the four options surveyed, we find that auxiliary righthood is the most promising approach, but that additional research is required to substantiate the claims.

It would be impossible in a short lecture to give a comprehensive survey of all the changes that have occurred in the last forty years in that branch of law known as “Israel common law”. I will not, therefore, try to do so. Instead, I wish to single out the most distinctive phenomenon in this area of law. I refer to the conceptual/intellectual revolution in the outlook of the court regarding the nature of its judicial function. The original view, according to which the sole function of the court in the area of public law is to decide disputes between citizens and public authorities, has been abandoned and replaced by an outlook that views the court as an institution responsible for the legality of public administration, or, as the court itself is accustomed to defining the matter, for the rule of law.

I shall divide my discussion into two parts. In the first part I will briefly discuss the prominent changes that have occurred in the judicial decisions regarding public law in recent years, and the judicial philosophy underlying these changes.

Since Israel's independence, the Supreme Court has been very active in establishing and securing an impressive edifice of human rights. Lacking a written constitution, the Court has based its constitutional jurisprudence on the democratic character of the state. It has developed an “Israeli made” bill of rights, relying on comparative studies, yet with little reference to the standards set in international human rights instruments.

Two legal events of the last three years may change the judicial attitude towards international human rights. The first major event was the Israeli government's ratification of important human rights conventions during 1991, first and foremost among them the 1966 Covenant on Civil and Political Rights, which has been named the “International Bill of Rights” (hereinafter: the 1966 Covenant).

In two recent cases before the Court of Justice of the European Union (CJEU), the General Court (at first instance), the High Court of Justice of England and Wales and the Grand Chamber of the CJEU found that a trade agreement and a fisheries agreement between Morocco and the European Union cannot be applied to occupied Western Sahara without the consent of its people. In spite of the fact that it is the general view that Western Sahara is under belligerent occupation, none of the three courts invoked the law of occupation but based themselves instead on the principle of self-determination and the law governing the administration of non-self-governing territories, including the principle of permanent sovereignty over natural resources. A possible implication of these judgments is that that law and the law of occupation are converging in certain respects, in particular as regards long-term occupation. This pertains not only to the substantive rules on the exercise of authority, which seem to require that the people are heard, but also to the basis for the establishment of that authority, namely bare control.

To reconcile the true boundaries between the individual and the community is the highest problem that thoughtful consideration of human society has to solve. Jellinek, The Declaration of the Rights of Man and of Citizens (1901).

The legislative authority in Israel is all-powerful. Like the English Parliament, the Knesset “can do everything but make a woman a man, and a man a woman”. In the absence of a formal written Constitution, the Legislature enjoys legislative supremacy: the laws of the Knesset stand at the top of the normative legal order of the State, paramount in the prevailing legal system. Ranged against such a Legislature-giant, whose power knows no formal restraint, the Courts often feel like Lilliputians facing a Gulliver. There is, indeed, justification for this sense of inferiority harboured by the Judiciary. It is undoubtedly true that in the process of adjudicating disputes—between two individuals and between an individual and the authorities—judges apply, construe, and develop the existing rules of law and impart life to them.

Il y a des criminels que le magistrat punit, il y en a d'autres qu'il corrige … Ainsi il ne faut pas confondre les grandes violations des lois avec la violation de la simple police: ce sont choses d'ordre différent. (Montesquieu, Esprit des Lois, liv. xxvi, chap. 24)
Here is this important body of law … where … there is going on a judicial task that is one of interest and also one of considerable difficulty … That is what gives scope for students of law. Do not ignore it or brush it on one side or dismiss it as impossible of study.
(Sir Patrick Devlin, “Statutory Offences” (1958) 4
Soc. Pub. Teachers of Law 215)

The present article responds to Sir Devlin's appeal in favour of that body of law which, in the spirit of Montesquieu, deserves the distinctive name of “corrective law”. Its province mainly coincides with what is commonly called “public welfare” or “regulatory” offences, of which violations of traffic rules provide the most typical example.

Their common feature is that they are penalized independently of the state of mind of the perpetrator, being based on the principle of absolute or, at least, strict liability. To this principle the most authorized teachers of criminal law have expressed their hostility; and their reasons therefor are undeniably impressive. Nevertheless, far from dying out, the field of strict liability offences increases constantly and, by sheer weight of number and variety, they greatly exceed those of “ordinary” crime.

The global expansion of judicial power and the rise of litigation as a vehicle for social transformation are two conspicuous social phenomena that are subject to intensive research by social scientists and lawyers alike. One of the most hotly debated questions in this regard relates to the potential value of law in general, and litigation in particular, as a strategy for social change. This article examines the question by comparing the struggle for equality in Israel by two groups – women's rights activists and lesbian, gay, bisexual and transgender (LGBT) rights activists – between 1970 and 2010. The struggles of women and LGBT people for equality have many shared characteristics, since both challenge the traditional conservative patriarchal social model. In Israeli society, moreover, both LGBT rights activists and women's equality activists faced the same political rivals: the powerful macho-type socio-political mentality, rooted in the central status of the military in Israeli society, and the strong hold of Jewish ultra-orthodox parties in the political system. The strategies that the two groups adopted to overcome these obstacles, however, were markedly different. While women's groups adopted an elitist strategy of struggle that concentrated on legal measures, LGBT rights groups adopted a variety of strategies that emphasised grassroots political tactics. The article examines the success of each group in achieving its political objectives by using cross-country comparative indexes of LGBT and women's rights. I argue that the comparison between the two groups points to the relative weaknesses of legal and litigation-centred strategies as vehicles for social transformation.

There is no single “problem of punishment”. The activity of punishing is problematic at many levels. There are problems relating to the authority to punish, the severity of punishment, the method of punishment, and of course the moral basis for punishment. Given this, we should be surprised were we to find that all these problems could be comprehended by a single, simple rationale. Nevertheless, there is one, fundamental, underlying moral challenge posed by all punishment, and it is especially (though not exclusively) to this that the classical justifications of punishment have been primarily directed. “Retributivist” and “utilitarian” justifications, however we understand them, are, above all, responses to what I see as this central problem of punishment.

Should the process by which laws are enacted affect their legislative validity? This Article attempts to provide a justification for judicial review of the legislative process and suggests that the court should encourage legislative due process. Lawmaking means responsible lawmaking, and the court should thus be able to ensure a minimal due process of lawmaking by reviewing the legislative process. To date the Israeli Supreme Court has refrained from judicial review of Knesset legislation by virtue of flaws in the legislative process. Recently however, Supreme Court judgments seem to have endorsed a form of judicial review of the legislative process, at least de jure. This Article presents the theoretical and comparative frameworks for judicial review of the legislative process and scrutinizes the law in those countries that conduct judicial review of procedurally defective laws together with an examination of the particular features of the rules governing such review. In comparative law, the characteristics of judicial review of the legislative procedures are similar to those manifested in the question of judicial review of legislation, and based on the same premises. In Israel as well, judicial review of legislation is based on the existence of a supreme constitutional norm, of basic rights and fundamental principles. The Article concludes by proposing that the main characteristics of judicial review: constitutionality, proportionality, and restraint should dictate the relationship between the Supreme Court and the Parliament in all aspects of judicial review.

In a previous paper it was argued that neither the tacit consent theory nor the opinio juris theory were by themselves capable of explaining the nature of customary international law, although each of them does indeed stress an important aspect—the tacit consent theory that custom is a lawmaking process, and the opinio juris theory that there must be some difference between customary law and practices which do not express, or do not give rise to law. What has to be done is to reformulate these approaches in such a way as to preserve the insights of each, while avoiding their errors.

A good starting point is the older tacit consent theories of the Civilians and Canonists, which were described in the previous paper. Their approach has the following characteristics:

i) By “consent” they mean, not contractual consent, but simply the intention to create law; therefore—

ii) they are able to admit that custom can bind individuals that have no part in its creation, even without their consent;

iii) they consider that the rules of customary law are binding absolutely, and not merely on a reciprocal basis; and

iv) finally, these jurists show an awareness of the fact that the conditions which regulate the formation of customary law are themselves rules of law, rather than necessary truths that can be deduced from the nature of custom.

This paper examines the historical background and the social processes that have changed the perception of child abuse in Israel from almost complete lack of awareness to concern and formal societal reaction during the 1990s. The recent emergence of child abuse as a social problem and the consequent actions of scrutiny and surveillance through legislation, law enforcement, punishment and educational prevention is set within the cultural milieu of the past two decades. This sociological analysis shows that there was a gradual transition from a private condition to a public “social problem”. The social actors involved in this process primarily included social workers, professional educators, academics, the daily press, members of Israel's Parliament and law enforcement agents.

For various scholars and professionals, the incident that triggered awareness and concern about child abuse in general and child sexual abuse in particular was the tragic death of young Moran Denemias in 1989. However, in our paper we posit that this single tragic incident in itself did not prompt officials or the general public to view it as part of a larger problem. The general political tendency to overreact to the emerging issue of abuse, and the rapidity with which the Law for the Prevention of Abuse of Minors and Helpless Persons was passed at the end of the 1980s can be explained by a general moral sentiment that matured decades earlier.

Many scholars have written about the changes in international law in recent years. Many have seen this change in the environment of international humanitarian law as a result of greater application of human rights in this area of law (IHL). This Article approaches the changes in international humanitarian law from a different perspective, that of law and economics.

The main claim in this Article is that recent changes in international humanitarian law can be seen as a change from a rule based normative system, to a standard based one. The difference between a rule system and a standard system rests not in the complexity of the norms, but by whom and when changes are made. In a rule—decisions are made before the fact, and in a standard—decisions are made after the fact. This Article then evaluates the advantages and disadvantages of this move from rules to standards, and offers observations and future avenues of research.

Notwithstanding of the considerable body international law dealing with occupation, identification of the normative standards against which law and order is maintained continues to challenge the international community. That challenge is centered on the existence of an unclear and often awkward interface between international humanitarian law and international human rights law.

Policing represents the normal means by which order is maintained in society. In occupied territory the preference should be for maintaining order by means of properly trained police forces seeking to apply international human rights law standards. However, the security threat is often not limited to criminal activity with there being striking similarities between attempting to maintain order in occupied territoty and battling insurgencies in internal armed confits. This then points to the application of international humanitarian law to govern the use of force.

Despite ongoing disagreement about which paradigm should be applied the question remains whether the proponents of the two frameworks can break free of their normative chains to craft a realistic approach to maintaining law and order. Suggested approaches include the situation based approach of applying the appropriate body of law to specific fact situations and the blended approach of borrowing from each normative regime to address the unique situations confronting security forces. Which ever approach is adopted the emphasis must remain on the right to life to ensure true respect for the rule of law is maintained.

Contemporary immigration has reinforced calls for minority rights in liberal states, which accrue to immigrants (but also to citizens) qua member of an ethnic minorify group. It is often overlooked that such minority rights may be of two kinds: multicultural rights that protect cultural differences or antidiscrimination rights that attack discrimination on these grounds. I argue that the importance of multicultural rights has been greatly exaggerated, and that much of the work attributed to them has in fact been accomplished by group-indifferent individual rights. By contrast, antidiscrimination rights are growing stronger; even in Europe. However, to the degree that it tackles indirect discrimination, antidiscrimination cannot but be factually group-making, even in states that reject multiculturalism.

My story is full of holes. The first hole, or rather, ditch, was dug in 1930 by the municipality of Haifa. An Arab, Dr. Caesar Khoury, fell into the ditch and fractured his shoulder-blade.

Could Dr. Khoury recover? The law of torts of mandatory Palestine was found in the Mejelle — an Ottoman code of Moslem civil law. Did the Mejelle provide a remedy in the case of personal injury? “Unfortunately,” said Judge Francis Baker, who delivered the opinion of the Supreme Court of Palestine, “the Mejelle dealt with liability for damages caused by animals to property, but it was ‘silent’ with regards to injuries caused to persons”. Therefore, Dr. Khoury could not recover.

The second hole in my story belongs to a Jew, Feivel Danovitz. In 1939, Danovitz was run down by a truck in Tel Aviv. He sued the driver and the owner of the truck. The lower courts of Tel Aviv decided that if the Mejelle did not deal with liability for personal injury, that meant that there was a hole in the tort law of Palestine. Such a hole could be filled by recourse to the English common law in accordance with the provisions of Article 46 of the Palestine Order-in-Council, 1922. Since the English common law recognized liability for personal injury, Danovitz could recover.