The “Jewish Seat” on the Supreme Court of the United States of America, which had been occupied by Justices Brandeis, Cardozo and Frankfurter, was after the tatter's retirement in 1962 offered to Arthur Joseph Goldberg. He was not the only Jewish candidate whom President Kennedy considered for nomination: the other was Paul Freund, Frankfurter's successor on the faculty of Harvard Law School and his intimate friend. Opinions were divided whether Freund's candidature was eliminated because of Goldberg's superior merit, or because the President nourished a grudge against him for having twice refused appointment as solicitor-general, or perhaps because there were already two many Harvard men in high office — a fact which had aroused criticism in some quarters. Goldberg had, for about one year, been Secretary of Labor in Kennedy's cabinet: though his actual successes in ameliorating strike-ridden labor relations were (to say the least) doubtful, the President and his aides at any rate had ample opportunity to acquaint themselves with his personal and professional qualities; and if an assumption of mutuality is in order, Goldberg on his part admired and revered the President well nigh unreservedly. Goldberg's reputation also outside the White House must have been well established: he was the only Jewish candidate for the Supreme Court whose nomination was unopposed and approved after a perfunctory hearing. The opposition to previous Jewish nominations, even to that of Cardozo who was otherwise uncontested, had always had antisemitic undertones which were absent (or suppressed) in Goldberg's case. It was suggested that had Kennedy survived there might have been yet another Jewish appointment to the Supreme Court: not so much because being himself the first Catholic to be elected President, he was particularly sensitive to religious discrimination, as because of his celebrated meritocracy, determined to recruit the best man available for every office.

“Liberty of the individual is a thing of the past, or the future, in Palestine”, wrote Bernard Joseph, a distinguished member of Israel's “government in the making” in 1948, shortly before Israel was inaugurated as a sovereign state. Joseph's “present” was the dusk of British rule in Palestine. Draconian Defence (Emergency) Regulations suspended conventional liberties ordinary westerners were accustomed to expect and turned Palestine into a police state.

Precisely what “liberty of the individual” the esteemed jurist, who held degrees from both McGill University and the University of London, had in mind when he invoked the past of Palestine is not entirely clear. He could not have possibly meant liberty under the Ottoman regime which prevailed until 1918. Ottoman rule in Palestine was authoritarian, feudal and corrupt.

If the term “developer obligations” seems unfamiliar, the policies which it denotes are familiar to anyone who deals with planning law: developer obligation s are requirements placed by planning authorities on developers to supply some public facility or amenity as a condition for granting a development permit. Developer obligations come in many forms: land dedication, payment of a fee, construction of a public facility, or supply of a public service. These requirements are known by varying names in many countries: in the U.S.A. they have come to be known as “exactions”, in Britain as “planning gain”, and in France as participation. Other countries may have many terms to indicate each separate tool, or no specific term at all. The term “developer obligations” is here proposed as an international term that, hopefully, has fewer culture-specific connotations than the other terms mentioned. I will use “developer obligations” in the broadest sense, to include some indirect mechanisms for financing public services, such as the land betterment tax, while “exactions” will be used to indicate the methods directly focused at financing such services.

The United States Supreme Court has recently defined the phrase “gray-market good” as: “a foreign-manufactured good, bearing a valid United States trademark, that is imported without the consent of the U.S. trademark holder”. The importation of genuine goods by someone other than the designated exclusive importers, which is usually referred to as “parallel importation”, is not a new phenomenon. Nevertheless, in the last ten years the volume of gray market goods has increased dramatically and the issue has received considerable attention from the courts, the news media and numerous legal commentators. The imports are “parallel” in the sense that they are made by the same manufacturer who makes the domestic trademark owner's goods. They are “gray-market” goods since they are legitimately sold abroad, but are not authorized by the domestic trademark owner for sale in the domestic market. The goods are also “genuine” in the sense that tney are manufactured by the same source as the domestic owner's goods. The problem of parallel importation is a worldwide one which has been solved through case law in most countries. This article reviews recent developments in the United States and Israel concerning parallel importation.

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.

Market overt deals with the conflict between the bona fide purchaser of a chattel and the person whose rights in the property are injured by the sale. Schematically there are three people involved in this situation: the original owner, the seller and the purchaser. The most simple illustration is the case in which A steals goods belonging to B and sells them to C, who does not know of their origin. On the common assumption that A disappears or is insolvent (and even on the assumption that his whereabouts are known and it is possible to file a claim against him) the question arises, who is entitled to the goods, B or C, and who must bear the loss. In the absence of special circumstances, one is unable to say which of the two has a more “just” claim to title — both have an absolutely valid claim. The layman and the legalist are confounded by this situation, and are without even a clear intuition of whom to favour.

The large variety of solutions to this dilemma offered by different legal systems is testimony to this conundrum. As in other questions, the Israeli legislature did not adopt a solution drafted by any particular foreign system, but drafted an original and independent rule. Elements of this rule are similar to the constituent elements in comparative rules in other systems, but the compilation of all these constituents is unique and different from all other rules.

Professor David Kretzmer has reviewed the development of administrative law in Israel and reached the conclusion that a revolution has occurred. The revolution manifests itself in the substantial widening of the scope of judicial review over administrative acts. For example, the Supreme Court is now willing to review the legality of parliamentary proceedings. This revolution, in his opinion, reflects a change in the conception of the Court's function in this realm. In the past the Court saw itself as limited to the function of deciding controversies between two opposing parties. Today, it is as if another function has been added, and the Court perceives itself as the guardian of the rule of law. Therefore, it is likely to become actively engaged in protecting the rule of law and to invalidate a governmental decision even absent a controversy in the traditional sense. The Court acts in this manner without explaining the basis or the reason for the role that it has assumed. Thus, the question may well arise whether this revolution is legitimate. On the basis of Professor Kretzmer's comments one may ask if indeed the Court, in the struggle over the rule of law, has taken on a function not its own, and in doing so itself infringed upon the rule of law.

The first forty years of the State of Israel witnessed significant changes in the relative status of the various branches of government. The executive was quite powerful during the early decades of the State's existence, thanks to the strong leadership of the first Prime Minister and founding father, David Ben Gurion. Accordingly, the status of the Supreme Court during that period was weak in comparison to the Executive Branch, i.e. the Government. Subsequently, the government's position weakened as the judiciary gained strength. This phenomenon was expressed in the increasing recourse to the courts to consider issues that had previously been the exclusive domain of the government. The judiciary's broader role and enhanced position vis-à-vis the executive did not bring about commensurate constitutional protection of the judicial system. In fact, we may observe a certain decline in this respect that hopefully, will be rectified when the Constitution of the State of Israel is completed with the enactment of Basic Laws on Human and Civil Rights coupled with legislation that will provide the requisite constitutional protection.

The symposium on 40 years of Israeli law presented the principal speakers with a formidable task, as one cannot do justice to the developments that have taken place in an entire branch of law over 40 years within the confines of a short lecture. This is perhaps especially true of Israeli constitutional law, which contains a wealth of matters deserving of discussion. Thus it may be that the method chosen by Professor Shetreet — a discussion of selected topics — is the best solution a specialist in this field could offer. However, speaking for myself as one who observes constitutional law as an outsider, it is essential to place these individual trees in their proper place in the forest. A further difficulty is that the article published here is a considerable expansion of the oral presentation to which it was my task to respond. I shall therefore confine my remarks mainly to placing these selected topics in their proper context, adding a few short and incomplete comments regarding the issues themselves. This approach seems preferable also because, generally speaking, I have no quarrel with the concluding, operative remarks in Shetreet's article.

Since the establishment of the State and up to the present day, Israeli law has had to deal with a great number of various problems in the field of international law, e.g. whether the State of Israel is a successor to the obligations of the Mandatory government; the jurisdiction of the Israeli courts with regard to offences committed in demilitarized zones or beyond the State's boundaries (on the high seas or abroad); the immunity of foreign states and their representatives from the jurisdiction of Israeli courts and from measures of execution; the status of international organizations and of their employees; the effect and implications of official acts performed within the territory of a state which is at war with Israel; the effect of international treaties in Israel; the question whether the Eastern neighbourhoods of Jerusalem are part of Israel; various issues concerning extradition, and of course, many questions regarding the laws of war: the powers of the military governor, and in particular his power to expropriate land in the territories under Israeli control and to expel residents from the territories, the extent of his legislative powers, etc.