During the short period since the middle of the present century the courts of more than one country have been called upon to deal with unprecedented claims: actions against a parent in respect of his liability for the plaintiff's birth under handicap, whether physical (congenital disease) or social (illegitimacy). Proceedings have also been taken against the State of New York, to hold it liable for an institution for which it was responsible, a Manhattan hospital, which failed to prevent a rape from which the birth resulted.

Together with our juridical interest in the solution of the problem—and perhaps even preceding it—we are curious to understand why it has not arisen before and now suddenly emerges simultaneously in a number of countries without apparently any mutual influence or awareness.

What we mean precisely by judicial reasoning is the reasoning of the judge as disclosed in the grounds of his judgment. The writings of jurists, the arguments of counsel, the indictment filed by the prosecuting officer—all provide grounds which may effect the judge's decision ; but it is the reasoned judgment alone which provides all the elements required to unfold the characteristic features of judicial reasoning.

The operative part of the judgment, the very ruling, is preceded by the grounds which constitute the reasoning on which the ruling is based. Judicial reasoning thus constitutes a model of practical reasoning, aimed at justifying a decision, a choice or a claim, and establishing that they are neither arbitrary nor unjust: the judicial ruling is justified if the conclusion following its reasons conforms to the law.

Assimilating judicial reasoning to a syllogism whose conclusion is true because it can be formally proved as deriving from true premises, would deny the very nature of practical reasoning and make it impersonal and devoid of its essential element of adjudication. The specific juridical nature of the judge's reasoning is not the formally correct deduction drawn from premises—in this respect legal deduction bears no distinctive features—but lies in the reasoning which serves to lay down those premises within the frame of an existing legal system.

The Pure Theory of Law is a theory of positive law, not of a definite legal order, but of the law in general. It is a general theory of law. As such it is the most consistent version of that school of jurisprudence which is called legal positivism because it considers as “law” only positive law and refuses to recognize as law any other normative social order even if, in the usage of language, it is called “law”, as e.g. so-called “natural law”.

Law is—according to the Pure Theory of Law—by its very nature a definite type of norm. As a “norm” the law is the specific meaning of an act of will directed at a definite human behavior. This meaning is: that men ought to behave in a certain way. Hence an essential presupposition of the Pure Theory of Law as a positivistic theory is the recognition of the fundamental difference between the “ought” and the “is”, between norms and assertions. Assertions describe a certain object; they are true or false; norms are not describing, but prescribing; they are neither true nor false; they are valid or non-valid. Hence it is necessary to distinguish as clearly as possible between legal norms established by the legal authority, and assertions of the science of law about legal norms, the sentences by which this science describes its object.

Until a few decades ago the opinion prevailed in England and in the United States, as also in continental Europe, that a contract is an agreement, although certain additional requirements were necessary to distinguish contract from other classes of agreement (see infra, para. 6). More recently, however, many leading American and English scholars have tended to substitute “promise” (or “aggregate of promises”) for “agreement”.

What characterizes the new view is not the mere use of the term “promise”: such use was widespread before and still continues among opponents of this view, and it is hard to deny that an obligatory contract is a promise or an aggregate of promises. The followers of the new view are distinguished by the fact that they prefer to define contract solely in terms of promise and sometimes even go so far as to reject agreement as an element of contract.

“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.

Interest in the legal system of Israel is enhanced by the circumstances in which the new State came into being.

The circumstances of place are peculiar, in that the territory of Israel is situated at the cross-roads of two continents and at the very focus of movements of upheaval by which they are both so deeply stirred.

No less unusual are the circumstances of time. The proclamation of independence, for all its novelty, was not in the nature of a birth certificate, but rather of an official record of resurrection witnessed after a hiatus of close on two thousand years. No other people, so it seems, better demonstrates the adage that a nation's history is reflected in its institutions. Driven into exile and scattered to every corner of the earth for so many generations, it is now retrieving its identity in a supreme effort of reunion in its never-forgotten home-land. In the meantime, the fund of experience accumulated during the great dispersion has left its mark on the individuality of every immigrant, so that in many respects the mental attitude of the population is as variegated as the rainbow.

It is an accepted principle that a master is vicariously liable for the torts of his servant committed in the course of his employment. While the principle itself is clear, in its practical application many serious problems arise. These problems turn mainly on the question, whether the master is liable when the servant acts solely for his own ends and not on behalf of the master. This question has been considered in numerous cases and there are two apparently opposing trends of judicial authority.

On the one hand there is a long line of decisions, beginning in the 17th century and continuing up to the present time, which lays down that the master is not liable if the servant acts solely to further his own private interests.

The broad meaning of the term res judicata covers all of the various possible binding effects of a judgment on subsequent litigation.

It may be assumed that the need for finality of judgment is recognized by many, if not by all, systems of law. The present study, however, is directed to the examination of the rationale behind the doctrine of res judicata and the meaning of the identity of actions, as reflected in Anglo-American and Israeli law.

Res judicata is evidently not one of the easy problems in jurisprudence as many have noted in the past. As to England and Israel in particular, one can hardly say it has been adequately explored.

It should be pointed out that the discussion is focused on judgments in personan, as distinguished from judgments in rem or quasi in rem; it does not deal with criminal cases, nor with decisions of administrative tribunals.

All three legal systems recognize two facets of res judicata. In spite of variations in terminology, these basic principles are usually held and understood identically.

I have chosen this particular topic for discussion not so much because of its intrinsic interest, but rather because of the opportunity it gives us to see ancient Near Eastern sources in their interrelationship. Let me commence with some words of introduction concerning the sources which will be considered. These are altogether four: the Laws of Eshnunna (LE), the Code of Hammurabi (CH), the biblical Book of the Covenant, and finally the Talmud. Between them they extend over some 2,000 years or more; nevertheless, it is my submission that not only may they be compared with profit, but even that there are some actual links which connect them.

The city of Eshnunna is situated to the East of the Tigris, on the bank of its tributary, the Diyala. The kingdom occupied an important strategic position between Assyria (in the North), Babylon (in the West), Isin and Larsa (in the South), and Elam (in the East). Much of its history is as yet uncertain, and it is not my intention, nor am I competent, to trace the fluctuating fortunes of the kingdom, the victories and defeats of its rulers. Eshnunna finally fell victim to the expansionist policies pursued with success by Hammurabi of Babylon, during the fourth decade of his reign.

Eighteen years after attaining independence Israel remains essentially a common law country. Introduced by the British Mandatory administration to supplement the Ottoman legislation in force at the time of the British occupation of Palestine, the common law has been retained by the Israeli legislator, so far as not modified or replaced by local legislation. But this common law, far from being residual only, also embraces a considerable body of interstitial law developed by two generations of judges, British, Palestinian and Israeli, in the process of applying and interpreting statute law—whether Ottoman, Mandatory or Israeli—according to common law methods. On the other hand the importation of common law institutions was neither wholesale nor systematic and in a number of fields no clear line of demarcation can be drawn between domestic and English law.

Four fundamental and inter-related points must be borne in mind when discussing existing or prospective legislation on the treatment of mentally-sick offenders:

First, the basic misconception in regard to the true nature of the issue of criminal insanity; secondly, the long-standing conflict between the legal and medical professions in regard to this issue, and the need to shift the centre of the conflict from the substantive to the procedural levels where considerable progress towards close cooperation has already taken place; thirdly, the inter-relationship of the procedural and substantive levels and the great power which the former is capable of wielding over the latter; and fourthly, the effects of the typical, traditional modes of procedure and trial techniques of individual countries on their existing laws and on future legislative progress.

The dual nature of the problem of the mentally-sick offender has been the source of much confusion. The substantive tests of criminal responsibility predicated on the mental condition of the accused at the time of the offence have been confused with the distinct problem of the modes of ascertaining his mental condition before, during or after criminal trial, and the setting up of machinery for disposal or treatment.

It has been asserted by Gunnar Myrdal, the renowned Swedish economist, that one of the three major obstacles to the satisfactory progress of international economic cooperation and integration is that the methods of settling international disputes are ineffective and primitive.

That the lack of adequate institutional facilities for the settlement of investment disputes has in particular hampered the flow of capital from the affluent to the developing nations (at a time when the revolution of rising expectations so extensively depends upon it) cannot be seriously doubted. As pointed out by one writer: “It does not appear realistic to expect a foreign investor to allow adjudication of his grievance before a tribunal of the nation in which the grievance arises, or before a tribunal of a nation allegedly causing the grievance… For similar reasons, a nation which is a party to a grievance will not normally allow its rights to be adjudicated by a tribunal of a nation of which a complaining foreign investor is a national.”

The legal practitioner may well be excused if his approach to comparative law resembles somewhat that of the defence lawyer putting forward the “rolled-up” plea in an action for defamation. Having questioned the very existence of comparative law, he cannot be blamed for covering his retreat by asserting that even if it does exist, it has, for him and his clients at least, no obvious value or significance. Should he refer to the writings of some of the leading acknowledged authorities in the field, he may find that his doubts, far from being lessened, are confirmed and strengthened. What must he feel, for example, when informed by Sir Frederick Pollock, participating in the first International Congress of Comparative Law at Paris in 1900, that “le droit comparé n'est pas une science propre, mais qu'il n'est que l'introduction de la méthode comparée dans le droit.” Should he prefer a more modern exposition, he may refer to Gutteridge writing some fifty years later. The methodological, as distinct from the juridical, character of the subject will appear to be confirmed. “‘Comparative Law’ denotes a method of study and research and not a distinct branch or department of the law. If by ‘law’ we mean a body of rules, it is obvious that there can be no such thing as ‘comparative’ law…[that is to say] any independent rules for the regulation of human relationships or transaction. …[C]omparative law is merely a convenient label attached to a particular method of study and research.”

The international lawyer, too, who adopts some such definition of his field as “that system of laws and regulations which those who operate on the international scene recognize as being necessary for their orderly conduct”, is likely to adopt a similar view, for he is unable to find any system of rules and regulations to which he can apply the term comparative law.

Lawyers in general, and international lawyers in particular, seem to suffer from what may be termed “the Latin formula syndrome”. In almost every branch of international law, one is faced with well-known epigrams of sententiousness drawn from the cornucopian source of ancient Latin phraseology. These venerable maxims, a legacy of the immense influence that Roman and Ecclesiastical law wielded on the fathers of modern international law, are in many respects very useful. In a few choice words, they epitomize fundamental ideas that may otherwise require verbose explanations, and they serve as a beacon for those groping their way in the legal dark. Unfortunately, however, laconic adages in general tend to be over-simplified, and, what is worse, as a result of constant and mechanical repetition, they are apt to lose their contact with reality and become petrified. If the law of nations is to be not merely “the law of notions”, but also the law of motion and animation, the epitaphs reflecting its major precepts must be reexamined every so often, else the mortmain of once flourishing but now barren concepts will keep it in a strangle-hold.

One of the more important of the Latin maxims that abound in international law is the general principle par in parem non habet imperium. This principle is commonly regarded as the starting-point for any venture into the field of State immunities, and it has even been said that

The purpose of this article is to discuss the problem of drawing a line between law and politics, as it presented itself to courts in Israel. Any such discussion must take as its starting point the judgment of the late President of the Supreme Court of Israel, Dr. M. Smoira, in Jabotinsky v. Weizmann So far as I know, it was here that the term “justiciable” was first used in this context in Israel. This was a case concerning the formation of a new government. The former government, headed by Mr. Ben-Gurion, had received a vote of non-confidence and resigned. The President of the State, after consulting the parties, asked Mr. Ben-Gurion to form a new government and, upon his refusal, had let the matter rest. The petitioner's complaint was that the President should have called upon each and every one of all the 120 members of the Knesset until one was found who succeeded in forming a new government. He applied to the Supreme Court, sitting in its original jurisdiction as a High Court of Justice, for a writ of mandamus against the President ordering him to do so. Two points were submitted by the Attorney General in opposing the grant of an order nisi. His first submission was that the Court should assume no jurisdiction over the President of the State. In this submission he failed, but he succeeded on his second ground, which concerns us here, namely that the matter, being “political”, was not justiciable.

The problem of personality in international law is destined, apparently, to remain an obstacle to development, control and responsibility-norms binding on international non-State and non-IGO entities. In short, is this international social phenomenon still subject to the dogma of “States only” in international law? Or, conversely, is international law still the law for inter-State relations only? This writer's views are on record with an analysis of the NGO-phenomenon; he would like to add a few observations on the subject of International Corporations (IC), and on the impact they might possibly have on the general problem of personality of the non-State international entity.

When, thirty-six years ago, the structure and organization of the Bank for International Settlements (BIS), Basle, had been settled by a team of noted draftsmen, Sir John Fischer Williams noted in a paper on this subject: “We theorists have to take heed to build our doctrines on tendencies rather than on ‘facts’; otherwise, when we have finished constructing our systems, it may happen that the facts are no longer what they were when we started building, and the system is out of date before it is established.” In the meantime, several other corporations of a similar nature have been set up but in spite of a number of valuable papers on this subject, we are still without a systematic integration of what has gone on around us—although it is now clear that the traditional pedagogic categories have become unsatisfactory.

The difference between what a man already owns, or property, and what he is only entitled to claim, or obligation, is fundamental. A debt represents what a man is entitled to claim, but because of its proximity to a claim in detinue and for other reasons to be hereafter discussed, it is for many purposes treated as if it were something that a man already owns. The owner of a debt may not help himself by seizing what he is owed and must, like the owner of any chose in action, implement his right with the cooperation of the debtor or else by resort to the courts. Nevertheless, he who owns a debt enjoys a peculiarly “strong” right. This strength derives in part from the “real” nature of the right; by virtue of this a creditor, such as a lender or an unpaid vendor, is treated in some respects almost as if he were already the owner of what is owed, in particular a lender as if he went on owning the money lent to the borrower. And even in cases where a debt does not originate in a real transaction (as, for instance, a judgment-debt or income tax owed to the government, in which cases the creditor has not previously given that, or the equivalent of that, which he now claims) it is still “strong” because the object in obligatione, viz. money or other fungibles, is “indestructible” and therefore a debt cannot be frustrated by impossibility.

This question is closely connected with substantive law. It is interesting to note that whilst the Israel legislature has purported to revise only the procedure with respect to criminal insanity, the substantive issues were also attacked by the courts soon after the enactment of the procedural innovations in 1955, thus perhaps also reflecting the close interdependent relationship between the procedural and the substantive aspects of the problem. The setting up of a somewhat detailed procedural machinery has, curiously enough, led to far-reaching liberalization of the tests of irresponsibility by the Israel courts who, after a persistently strict adherence to the McNaghten Rules, are now willing to add the test of “irresistible impulse” by an ingenious interpretation of the Criminal Code Ordinance (the terms of which have not been changed in this respect since its enactment in 1936), straining the “natural” meaning of its provisions almost to breaking point.

The first attempt to achieve this far-reaching change of policy was made by Justice Agranat (as he then was) in the Mandelbrot Case but despite his scholarly and forceful opinion he was overruled by the majority of the court. The same issue, however, came up again in the Mizan Case, where a panel of five Justices (two dissenting) confirmed Justice Agranat's minority opinion in the MandelbrotCase, thus incorporating in substantive law the additional test of pressure of irresistible impulse derived from mental illness.