In English law—and Israel law in this respect follows English law—there is a firm principle that a person who collaborates in the commission of a tort by another is considered as having concurrently caused the tort along with that other, even if his participation is merely indirect—as in influencing the person actually committing the tort by stimulating or strengthening the latter's desire to commit it. This hypothesis, the hypothesis of indirect participation, is related in our law to the principle that liability in torts is not limited to compensation for damages of which a person's act was the sole cause, but it may be imposed if the act was one of the causes. The principle, which is expressed in sec. 64 of the Civil Wrongs Ordinance (New Version), seems to have its roots in the theory of equivalence of conditions. According to this latter theory, but not according to it alone, there is no reason for denying X's liability simply because Y is also liable, or because the causal effect of Y's act or his culpability is likely to be regarded as greater than that of X. Neither is any distinction to be made between direct participation and merely indirect participation, that is to say, between participation in the actual commission of the tort on the one hand and influence on the person actually committing the tort on the other.

There has been a growing tendency since the establishment of the United Nations in 1945 to differentiate general international law from the law of international organization. If one were to accept this bifurcation it would be necessary to deal with the impact of new States under two distinct rubrics. For the purpose of this paper it is more convenient to make no such distinction, but to deal with the effects of the creation of more than fifty new States since the end of the Second World War on international legal relations at large.

One of the paradoxes of international law is that its binding authority rests to a great extent upon the consent of those it purports to bind. This consensual basis of international law finds expression in the judgment of the World Court in the S. S. Lotus:

In an article published in an earlier issue of this Review, the question was raised whether the courts of Israel have finally reached a conclusion on the question of their own power of judicial review of legislative measures passed by the Knesset. It was submitted that the question should be solved by a political rather than a judicial decision.

In the present article it is intended to examine a hypothetical constitutional question, namely, can the Knesset, acting within the framework of the existing legal system, adopt or develop a written, rigid Constitution which would become the “supreme law of the land” and which would be effectively protected by the courts?

Cuneiform sources, of different periods and places, contain a wealth of information concerning the activities of the merchant (tamkarum). Especially noteworthy is the Old-Babylonian material, which has recently been the subject of a detailed monograph. No less important is the Old-Assyrian material from the trading centre of Kaniš, discovered in ever-growing quantities in the course of excavations which continue up to the present. All these are private documents, both legal and non-legal, giving a varied and detailed picture.

When one turns to the various collections of legal rules, the results are rather disappointing. The only significant block of provisions is that in the Code of Hammurabi, commencing in the damaged part of the stele (sections U and V), and continuing in sections 100–107. They all concern, one way or another, trading operations; they purport to regulate the relations between a person who supplies capital or goods (the tamkarum), and his agent, acting on his behalf, going abroad to buy and to sell. One characteristic feature stands out at once: as a rule, though not necessarily always, the law merchant concerns itself with activities abroad, beyond the borders of the city-state. This general impression is confirmed also by such provisions as that of CH 32 (merchant ransoming prisoner of war), and CH 281/282 (purchase abroad of slave).

To answer the question whether the Israel legal system is based on Jewish Law foundations we must examine the two main operative factors which affect and control the nature of that system, that is, the legislative activity of the Knesset and the judicial activity of the courts. The fact that Israel law recognizes, though to a limited extent, the principle of binding precedent renders the courts active participants in the law-making process. This freedom of activity is restricted and operates only within the framework of the provisions of existing positive law, but this framework is quite flexible, as we shall later have occasion to note. Such restriction does not exist at all with regard to the Knesset's legislative activity. The Knesset is the sovereign legislature, unfettered even by a Constitution, and is free to make such law as it deems fit. The question, therefore, is on what assumptions do the various elements—the Ministry of Justice, the Government and the Knesset—engaged in the legislative process, function generally with regard to the subserving sources and more particularly with regard to the manner in which the law of the State is to rest upon Jewish Law.

It is difficult from an examination even of a representative sample of enactments passed by the Knesset to affirm that a clear and consistent policy indeed exists in this important regard, but from time to time expression has been given by those concerned to some of these underlying assumptions and it is proper that we should glance at these.