Our purpose in this lecture is to deal with certain basic problems of the recent codification and recodification efforts, indicating particularly some of the major sources of their failures.

The Philosophical and Scientific Underpinning of Criminal Legislation: Both the American and the continental European law proceed either from an obsolete image of man or from a false conception of the impact of a given image on the legal issues at stake, especially those involving the ethical, constitutional demands of our times.

Jurists, lawyers and law professors on both sides of the Atlantic are still formulating criminal law issues in terms of the dichotomy of free will versus determinism. At one time, in Germany, legal insanity was defined in terms of “free determination of the will” and when prominent psychiatrists complained that on the basis of their particular discipline it was impossible for them to answer the question of whether a man did or did not possess such self-determination, legislators accommodated them, formulating the relevant question in terms of “capacity to conform to insight into the wrongfulness (or unlawfulness) of the act”.

When Dean Feller did me the honour of inviting me to give the Lionel Cohen lecture for 1973 one of the subjects I submitted, and the one accepted by him, was “Reforming the Law of Evidence—The English Experience”. For me those were the halcyon days before the publication of the 11th Report of the Criminal Law Revision Committee; the law of evidence in civil cases had been modernised by the Civil Evidence Acts of 1968 and 1972, and I pictured the draft Criminal Evidence Bill annexed to the 11th Report going merrily through Parliament, if not without some protest and amendment, at least with celerity and the certitude of becoming law. Alas, this was not to be. To describe the reception of the Report as “unenthusiastic” would be the understatement of the century; but, although I must confess to considerable pessimism concerning the questions when and to what extent the draft Bill will become law in England, I am pleased that it should continue to be the subject of my lecture, although the title of the latter had perforce to undergo some change in order to cater for the fact that the English experience of reforming the law of evidence is too incomplete to allow for profitable discussion.

The main modes of punishment in our penal system are imprisonment, suspended imprisonment and fines, the last being the most frequently used. Fines as a mode of punishment becomes more and more popular the more it is realized that a short sentence of imprisonment often serves no useful purpose and is sometimes even harmful. Furthermore, as criminal law expands into new areas, as a means for the enforcement of administrative regulations, on public health, road traffic, national economy, etc., fines are used more since in many of these cases imprisonment is not regarded as a suitable sanction.

Every one of the known aims of the penal sanction (retribution, deterrence, resocialization in their various aspects or, possibly a mere warning can be best achieved when the sentence is inflicted upon the defendant personally. There is no point, for instance, in imprisoning another person in place of the defendant or placing another on probation. In the same way fines too should be paid by the offender and not by anyone else.

In practice, the problem of another person taking upon himself the defendant's penalty arises mainly in respect to fines, because it is not likely that one person would be willing to suffer imprisonment on behalf of another and furthermore, the means of identification used by the prison authorities makes this extremely difficult.

L'internationalisation du crime terroriste ne pouvait laisser indifférents les criminalistes et les internationalistes pas plus que les gouvernements, d'autant que, souvent, des crimes d'une telle gravité restent impunis, car à l'internationalisation du terrorisme ne répond encore l'internationalisation de la répression.
Antoine Sottile, 1938

The great upbuilding of international law which set in with the end of World War II did not overlook the penal aspects affecting the social substratum and organizational assignments of international law. Matters were no longer envisaged in the rather simplistic manner of Art. 231 of the Treaty of Versailles which had, authoritatively though not arbitrarily, decreed that “Germany accepts the responsibility … for causing all the loss and damage to which Allied and Associated Governments and their nationals had been subjected as a consequence of the war imposed on them by the aggression of Germany and her allies”, and, not less authoritatively, though more arbitrarily, decided “publicly [to] arraign William II for a supreme offence against international morality and the sanctity of treaties”. More realistically, Art. 228 postulated the “right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war”. To the great loss of mankind, these provisions were in time eroded to the point of becoming less than meaningless.

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.

This short article deals with two of the Deuteronomic laws: the law of the tithe (Deut. 14:22–28; 26:12–16) and the law of the Hebrew slave (Deut. 15:12–18). It is not intended to present a comprehensive study of these two laws, but to limit the investigation to the uncovering of those ancient laws referred to only by the author of Deuteronomy and not by the authors of the other Biblical codes, including that of the Covenant Code.

I. Bashanah hashlishit shnat hama'asar “in the third year, which is the year of tithing” (Deut. 26:12).

The reader of the law of the declaration of the tithe will quickly discern a contradiction: the tithe of the third year is given to the Levite, sojourner, orphan, and widow, bisharekha, literally, “within your gates” (within which there are no cultic places according to the laws of Deuteronomy—Deut. 26:2b). On the other hand, the tithe is declared in the Temple lifnei adonai “before the Lord” (Deut. 26:1s). Another surprising point is that the law creates an impression of unfamiliarity with the annual tithe. Apparently, only the triennial tithe is known: “in the third year, which is the year of tithing”.

It may appear unduly pretentious to speak of the Spirit of the Law of a State which just completed but 25 years of independent legislative and judicial life. States with legislative and judicial records of hundreds of years may find it difficult, and perhaps also rather unprofitable, to delve into speculations of the Spirit behind their laws. In most cases, the general trend and the political motivation of the creation and the administration of law are anyhow known beforehand and well defined a priori—be it the realization of democracy by the rule of law, be it the implementation of socialism or communism, or the self-assertion of a fascist or communist dictatorship. Add to such trends and motivations the national legal traditions which a State inherited and consciously or unconsciously continues to maintain—and you will obtain, for what it may be worth or useful, a fair overall picture of the “Spirit”.of its laws.

1. May a Judge Refuse to Pronounce Judgment?: In modern legal systems, the judge cannot as a rule evade his basic duty, that of adjudicating. He has the option of either allowing or of rejecting the plaintiff's claims. Under the rules of criminal procedure adopted by several countries, he may acquit for insufficient evidence. But he cannot be released from exercising his function as a judge, claiming either that the facts of the case are not sufficiently clear to him (factual doubt), or that the norm to be applied in the specific case cannot be determined (judicial doubt), or even that there exists no fixed norm for the determination of the case (lacuna in the law).

Thus the Code Civil des Français (or Code Napoléon) lays down explicitly: “A judge who refuses to decide a case, on the pretext that the law is silent, obscure or insufficient, may be prosecuted as being guilty of denial of justice”. This article is the outcome of a long evolutionary process. Prior to the French Revolution, before the separation of powers, the main question was not that of lacunae but rather that of the directions given to the judge in order to help him carry out his functions.

This question, evoked for the first time over thirty years ago and apparently resolved some twenty years ago, is being presently hotly debated as a result of the Bill Repealing Ottoman Laws, which is intended to abrogate, inter alia, the remains of the Mejelle, the Ottoman Civil “Code”, still in force in Israel. Throughout the Courts' examination of the question there was never any doubt that the answer is to be found in the Mejelle. For this reason it is now feared that, with the latter's disappearance, no statutory authority will be left in Israel law recognizing custom as a source of law. Admittedly, in the absence of any provision in the Ottoman law still prevailing in this country, article 46 of the Palestine Order-in-Council, 1922 might once again allow recourse to English Common law. Moreover, under the British Mandate in Palestine, reference was made to the Common law on this subject. Since the establishment of the State, however, less significance is attached to this reference. Recently it has even been stressed that there is no point in trying to adopt the English notion of custom, whose requirements are so rigid (notably as to antiquity) that the existence of a custom is not recognized unless it dates from 1189, the first year of the reign of Richard I. Indeed, this lack of flexibility renders recourse to English law, on this point, totally unworkable and merely underlines the necessity of finding a solution within the local—in this case—Ottoman law.

The application of foreign law in American courts forms the subject matter of much comparative law writing. Two alternative approaches are usually adopted by the comparative legal scholars. One studies pleading and proof of foreign law in American courts; the other studies the substantive use of foreign law by American courts. No studies of the actual use of Jewish law by American courts are to be found. In what follows an attempt will be made to fill the gap and to draw some conclusions concerning the relevance and advantages to the courts, the parties and society generally of such use of Jewish law.

All reported cases which have expressly made some use of Jewish law are collected and analyzed in this article. In addition, the application of Jewish law to the resolution of conflicts presently handled by the courts is discussed.

The reported judgments in which a party's appeal to Jewish law was considered relevant are classified according to American law classifications as opposed to Jewish law classifications. Finally, the actual relevance and the relevance in the eyes of the presiding judge of the Jewish law to the controversy before the court is examined.

This paper is based on a study prepared for the National Insurance Institute. Originally a comprehensive field study was envisaged, to include empirical data concerning the compensation of victims of automobile accidents in Israel, with the intention of examining the possibilities of necessary reform. It transpired that the field study needed substantial expansion in connection with a separate and independent study of the National Insurance Institute, relating to the rehabilitation of accident victims. It was therefore decided to deal with those areas which did not depend directly upon the empirical data. The absence of such data, however, restricted the possibility of drawing definite conclusions as to the state of affairs in Israel.

The first public proposals in the matter appeared in the Report of the Ben-Ze'ev Committee, appointed by the Ministers of Justice and of Labour in 1964, which was published in the summer of 1966. The gist of the Report lay in the recommendation to leave the implementation of the proposed scheme to the National Insurance Institute. The insurance companies and others came out in opposition and for that reason apparently the Report was shelved.

The subject matter of our discussion today is entitled “Written or Unwritten Constitutions”—but the real issue before us is the supremacy of the legislature. A written constitution is normally thought and spoken of as a curb upon the supremacy of the legislature; and a constitution under which the legislature is supreme, is normally called “unwritten”. I shall not presume to advise you in Israel as to whether you should give yourselves a written constitution: all I can venture to do is to give you some personal reflections from my own experience, as one who has lived his life and administered the law under an unwritten constitution.

So far as constitutional law deals with the structure of government—how laws are to be made, how they are to be put into effect, how disputes as to rights and obligations under the law are to be decided—it may or may not, in a unicameral legislature, be advisable to require that amendments of what I may call the structure of the constitution should be by a particular majority. Opinions on this may be divided, and I am not going to take any stand. What I should like to give some reflections upon is the proposal that there should be a “basic law” setting out the fundamental human rights and liberties, and what the status of that law should be.

Is a party who breaks his contract entitled to restitution? This is one of the most difficult problems in the law of contracts. Williston, for instance, remarks:

We shall examine this question in light of the provisions of the Contracts (Remedies for Breach of Contract) Law, 1970.

Sec. 9 of the Law reads as follows:

It is generally accepted that the source of the section lies in the traditional supremacy of the English Crown. Since the Crown is the lawmaker it cannot be fettered by the laws it makes unless there is express provision to that effect. On the other hand where laws confer rights upon the Crown, a contrary rule sometimes operates that a statute is to be interpreted in favour of the Crown, since in enacting it the King's subjects act as grantors of rights and the rule against derogation from grant takes effect. In point of logic, however, even without express provision there is nothing to prevent a lawgiver from placing restrictions upon himself.

In Jewish thought indeed although the law emanates from the Almighty, who is indeniably Supreme Authority—”the King of Kings”—it is deemed to apply even to Him.

It is surprising therefore to note that even in the United States, that model of democracy where the rights of the individual are so protected, the English approach has been adopted and extended to every government body even in the area of private law.

Since 1950 four Basic Laws have been enacted: The Knesset, Israel Lands, The President of the State and The Government.

Some months ago the Ministry of Justice presented to the Ministerial Committee on Legislation the draft of a new Basic Law called Basic Law: Legislation. If this draft is approved by the Government, it will be presented to the Knesset as a Government Bill. The draft includes an outline of the basic principles and powers relating to legislation and the provisions which call for specific attention are as follows:

a) A Basic Law shall bear the name “Basic Law”.

b) A Basic Law, a law amending a Basic Law or a provision of law contradicting a provision of a Basic Law, shall require—on its final reading—the vote of a majority of members of the Knesset, provided the Basic Law involved does not explicitly require a larger majority.

c) A provision amending a Basic Law or contradicting it shall have the force of law only if it states explicitly that it is to have that effect.

One of the principal functions of military government in an occupied area is to return civil life to its normal course. Such a goal is not only a political objective whose advantages are obvious; it is also based upon the principles of International Law and the Law of Warfare. The military administration bears responsibility for restoring public order and safety and maintaining essential services, so that it may fulfil the civil functions of government for the welfare of the population in the occupied area.

In the intricate framework required to supply services to the population of the occupied area by the military administration, the local municipal authorities play a substantial role. These authorities regard themselves as being closer to the residents of the occupied areas, and thus they see it as a moral duty to take care of their population and provide it with daily services.

During periods of crises and war the population tends to a greater extent to shut itself within its immediate surroundings and to request aid and encouragement from familiar local bodies; thus it becomes more and more dependent on the local authorities.