In difficult times, you need friends. The Legal Friends of the Hebrew University in London, and your many friends elsewhere in the world, have been thinking about you a great deal during recent months. As your President, Professor Magidor, wrote in his moving letter on 31 July, this university symbolizes the values of pluralism and tolerance. You exemplify the spirit of Israel, with your deep historical roots and your encouragement of open debate about the future. It is a great pleasure to be invited to address you today as the Lionel Cohen Lecturer.

My subject concerns the very limits of pluralism and tolerance: the application of human rights in an age of terrorism. When dealing with enemies, politicians need to be tough. In the latest volume of his compelling biography of Lyndon B. Johnson, Robert A. Caro describes the future American president's explanation to his mother in 1956 of why he did not think much of the chances in the presidential election that year of the Democratic Party candidate, Adlai Stevenson: “He's a nice fellow, Mother, but he won't make it ‘cause he's got too much lace on his drawers.”

The threat posed by terrorist enemies understandably provokes politicians to be tough. But how should judges respond when asked to rule on whether a state can afford to grant human rights to those who seek to destroy its very existence? Or, to put it another way, equally tendentious, should judges accept that the State cannot afford to deny human rights to such people if it is to maintain the values which make our society worth defending?

One of the most significant court decisions in copyright law has been the United States Supreme Court's decision in Feist Pub., Inc. v. Rural Tel. Serv. Co., and its path-breaking approach towards the requirement of originality. The grant of copyright protection, in an intangible work, is conditioned upon the fulfillment of the prerequisite of originality. Until the Feist decision, Anglo-American copyright law had a long tradition of interpreting the requirement of originality as imposing a minimum standard of labor, skill or judgment in the production of a work that is not a copy of another work. In Feist, a watershed decision, which had international impact and influence, the United States Supreme Court first introduced the requirement of creativity into Anglo-American copyright law. According to the court's ruling, only works that entail a minimum standard of creativity could pass the threshold of originality and therefore be eligible for copyright protection.

The status of Arabic in Israel gives rise to question. Israel is a rare case of an ethnic nation-state that grants the language of minority group with a legal status which is prima facie one of equality. Both Hebrew and Arabic are the official languages of the State of Israel. What are the reasons for this special state of affairs? The answer is threefold: historic, sociological and legal. In various ways the potential inherent in the legal status of Arabic has been depleted of content, and as a result of that, as well as other reasons, the socio-political status of Arabic closely resembles what you would expect the status of a language of a minority group in a state that identifies itself as the state of the majority group to be. This answer, however, is another source of puzzlement – how does such a dissonance between law and practice evolve, what perpetuates it for so long, is change possible, is it to be expected?

We present an analysis of the legal status of Arabic in Israel and at the same time we proceed to try and answer the questions regarding the gap between the legal and the sociopolitical status of Arabic. We reach some of our answers through a comparison with the use of law to change the status of the French language in Canada. One of these answers is that given the present constellation in Israel, the sociopolitical status of Arabic cannot meaningfully be altered by legal means.

This article is primarily concerned with the issue of the justification for objection to service in the Occupied Territories and the claims made against such objection by those who share the objectors' opposition to the continuation of the Occupation, especially those who have, or at least purport to have, professional authority on the subject of disobedience. However, I will also discuss the question of the appropriate attitude towards such an objection from the perspective of the State and the courts, mainly because many people confuse the considerations that should inform the State's approach towards objectors with those that should guide the objectors themselves.

The arguments against disobedience are divisible between those purporting to demonstrate that there are absolutely no legitimate reasons for refusal, and those purporting to show that despite the existence of reasons for refusal, such acts should not be committed since the reasons militating against them are even stronger. Two main arguments are invoked in rejecting the legitimacy of disobedience. First, it is claimed that such disobedience cannot be justified by a universal and ideologically-neutral principle. Secondly, it is argued that such disobedience undermines the democratic regime. These arguments will be discussed in the first section of the article.

This article compares the law of foundations (charities) in Germany and Israel. What is a foundation and what it is created for, may receive different answers in different legal systems. When an Israeli jurist refers to hekdesh, he is not referring to the same concepts included in the German Stiftung. These differences find expression both in practical and theoretical matters. For example, German law recognizes the foundation as a legal personality, a characteristic lacking in Israeli law. Moreover, in Germany a foundation managing a business enterprise, or an enterprise adopting the legal form of a foundation, is an accepted phenomenon, but this is not accepted in Israel.

To understand what a foundation is, it is necessary to distinguish between the different types of foundations: on one hand public or private ones, and on the other hand religious and secular foundations. This article discusses the methods of creating a foundation (mortis causa or inter vivos) and examines the elements needed to create it: purposes, assets (one of the central points in Foundations Law is to ensure their efficient use) and management. The comparison does not obviate the problem of state supervision, needed to ensure the right of the beneficiaries and of the entire community to correct usage of the endowed resources.

In the final analysis, the paper stresses the importance of comparative law as an instrument aimed to broaden legal theory and enrich the dialogue between jurists of different countries.

Market power is not ubiquitous; it is limited to certain products, in certain areas, and to certain times. Understanding the limits of the market power possessed by a firm in a given case is essential to the correct assessment of the firm's behavior and its antitrust implications.

The most common method used to identify the scope as well as the strength of a firm's market power is through the definition of relevant markets, calculation of market share and identification of relevant market conditions (e.g., barriers to entry). Correct assessment of suspected market power should relate to all the limits on that power. For that reason, when exploring the possibility that a certain firm possesses market power, a product market definition is of limited use without the support of the relevant geographic market definition.

This is also true of temporal restraints on market power. Some firms may be expected to possess market power (within certain product and geographical bounds) continuously, until a substantial and unexpected change in the industry diminishes their market power or changes its boundaries.

At issue is the appropriate legal reaction to so-called “selective” conscientious objections in the current Israeli context, accounting for both consequential considerations and deontological ones. It is argued that a relevant distinction in this respect is between objections committed by members of a permanent minority, which are based on views that are practically excluded from the political discourse, and objections which are guided by what Rawls calls “political principles”, that is, “the principles of justice which regulate the constitution”. This distinction can explain and justify the current policy of the Israel Defense Forces (IDF) of granting exemptions to Ultra-Orthodox Jews and to Arabs (even if not all these cases reflect so-called “full” conscientious objection) while denying an exemption to those who refuse to serve based on their opposition to the IDF's activities in the Occupied Territories. However, it is argued that the important expressive role of such refusals requires a more measured approach, by either legitimizing a limited number of such acts or imposing only minimal sanctions (while formally de-legitimizing such acts). These arguments are preceded by an assessment of an alternative possible justification of legitimizing refusals, to prevent the implementation of unlawful activities by the IDF. It is argued that this purpose does not justify legitimization of refusals except in particular instances that are specified.

The main purpose of this paper is, first, to consider the nature of psychopathic personality disorder, and then, to consider the capacity for criminal culpability of psychopaths and whether it is justified to hold them culpable. Initially, a description of the disorder of psychopathy shall be presented, highlighting those character traits deemed relevant for findings of criminal culpability. There follows a brief discussion of the main theories justifying punishment and their position on punishing persons incapable of effective participation in moral reasoning. Lastly, a discussion of the importance for moral condemnation of the capacity to feel empathy and the absence of that capacity in the psychopath, leading to the conclusion that these persons should not be regarded as blameworthy.

Issues such as prison overcrowding, a growing realization that prisons cannot rehabilitate, and the belief that many inmates could be adequately managed in less intrusive and costly settings, have led Israeli scholars and practitioners, in the last four decades, to devote efforts to the development of alternative sanctions to imprisonment. Specifically, the focus has been on the development and elaboration of alternative sanctions that match the severity of punishment to the seriousness of the crime.

Intermediate sanctions (also called “alternative sanctions,” “alternatives to imprisonment,” or “community-based sanctions”) have been proposed as “ways to manage the burgeoning numbers of offenders without sacrificing public safety.” These punishment options are considered to fall on a continuum between traditional probation supervision and traditional incarceration.

The purpose of this article is to give a panoramic view of Chief Justice Barak's theory of interpretation, namely the purposive theory, which is contained in a six volume treatise in Hebrew, Interpretation in Law. In order to understand this theory, it is useful to imagine a spectrum where, on the one hand, there is the subjective intent – namely the meaning that can be deduced from the intent of the writer of the text – and, on the other hand, the objective intent – namely the meaning based on the fundamental principles of the legal system. Various legal texts are interpreted by placing them on different points of this spectrum in accordance with the relevant area of law. Accordingly, in defining the purpose of Basic Laws, Barak gives primary regard to the fundamental principles of the system, with very little regard to the intentions of the drafters. In contrast, the purposive interpretation of wills occupies the other end of the spectrum, with maximum regard for the subjective intention of the drafter and a much smaller regard for the fundamental principles of the legal system. After a brief review of the philosophical and theoretical application of the purposive interpretation of various legal texts, the article moves on to demonstrate, through decisions of Chief Justice Barak, the judicial application of the purposive interpretation in two of the most important fields of interpretation: constitutional interpretation and interpretation of contracts.

This paper critically analyzes the theoretical and pragmatic arguments raised against the refusal of individuals to serve in a specific military campaign that they view as immoral. The Israeli Supreme Court case of Zonshein v Judge-Advocate General will serve as an axis of the discussion, as it combines two related facets: first, the Court's decision touches upon most of the difficult issues in the field of conscientious objection. And second, the development leading up to the decision was accompanied by an exceptional clash of academics, each side summoning expert opinions in support of its claim.

Courts worldwide have accepted that a categorical distinction exists between universal and selective conscientious objection. The combination of the Zonshein decision and the accompanying academic debate presents the opportunity to reexamine the theoretical and pragmatic reasons that are offered as support for distinguishing the two ‘types’ of conscientious objection. Close scrutiny finds them wanting.

The development of an international status for military conscientious objection received a strong backing by pronouncements from bodies like the Human Rights Committee that the capacity for objection can derive from the international human right to freedom of religion or belief of the International Covenant on Civil and Political Rights. Even with such pronouncements, questions remain in regard to the nature, boundaries and scope of this right. Most importantly, does this pronounced right allow for selective military conscientious objection within the international human rights system? This article will focus on the view that the capacity for military conscientious objection in the international human rights system derives from the right to freedom of religion and conscience. The implication of the international human right of freedom of religion or belief is important for its application to selective conscientious objection. However, even if the Human Rights Committee desires to limit the application of military conscientious objection, a selective objector can arguably still make the case for upholding a claim based on the human right and the manner in which it has been interpreted by the Committee and other international bodies. While on the one hand the focus on the human right to freedom of religion or belief can possibly provide the basis for a selective conscientious objector, it removes the possibility for claims that do not involve a religion or belief. The importance however of freedom of religion or behef should force a reviewing body to properly consider and measure the claim of a selective objector, with a view towards considering whether they are confronted with the manifestation of a belief and whether the state is violating such a seminal human right.