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.

The object of this paper is to examine the obligations assumed by Israel, by virtue of its acceptance of the compulsory jurisdiction of the International Court of Justice (hereinafter: “the Court”), in accordance with Article 36, paragraph 2, of the Court's Statute, which reads as follows:

“The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

• (a) the interpretation of a treaty;

• (b) any question of international law;

• (c) the existence of any fact which, if established, would constitute a breach of an international obligation;

• (d) the nature or extent of the reparation to be made for the breach of an international obligation.”

An attempt will be made to compare Israel's declaration of acceptance of the compulsory jurisdiction with the declarations of other countries, and to analyse the reasons underlying Israel's particular declaration. The paper will not purport to consider the many problems concerned with the Court's compulsory jurisdiction. These problems, and the considerable jurisprudence of the Court dealing with them, are well known to students of international law. Indeed, probably no other aspect of the Court's jurisdiction has been the object of such rich legal literature, some of it quite recent.

Before discussing some problems of the Halachah and modern medicine, I must spend a little time on the halachic view of the nature of the physician's responsibility and the authority he possesses in applying his knowledge and training.

The school of Rabbi Ishmael, to whom an important and entire system of exegetical rules for expounding the Torah is attributed, regarded the passage in Exodus xxi, 19, “and shall cause him to be thoroughly healed”, as the source of the physician's authority to practice his healing craft. These words were construed literally, in denial of the fatalism found in various religions and philosophies of those and later times, and which asked: “how can man presume to try to heal and, so to speak, to interfere with divine decree when the hand of Providence strikes?” Rabbi Ishmael's comment is especially significant since he was not merely an outstanding halachic sage but also a physician engaged in the practice of medicine.

The state of our “criminal law” in 1905 was described by William H. Taft as “a disgrace to our civilization”. This state had not changed much almost half a century later, when Justice Frankfurter quoted Mr. Taft's statement. Several major modern reform projects formulated since 1952 introduced some noteworthy modifications. I have in mind particularly the American Law Institute Model Penal Code, on the one hand, and the German Draft of a Penal Code, both of 1962, on the other. In the former I should like to draw attention to the serious attempt at a systematization of punishment scales, and in the latter to the effort at a systematic structuring of the “guilt principle”. The German Draft incorporated results of various revisions introduced since the collapse of the National Socialist régime, by either statutory or judicial legislation—revisions born out of the growing concern in Germany with “guilt”. Prominent among these revisions, of course, is adoption of the defence of “error of law” of ancient origin, derived from biblical, talmudic and canon law teaching. Nevertheless, these two projects have but touched the surface of the profound problems that are involved in formulating truly modern penal legislation.

Two seemingly contradictory objections are raised against the traditional rules of liability for damage; on the one hand the requirement of fault appears to preclude just compensation of many persons who have suffered loss or injury, particularly such as is caused by modern dangers—motor traffic, the use, storage or transportation of high explosives, or the release of atomic energy. On the other hand damage caused by even the slightest degree of negligence may exceed by far what can justly be demanded from the person responsible.

In Dunne v. North Western Gas Board no less that 46 coal gas explosions occurred simultaneously in the streets of Liverpool. The people injured were unable to recover because it turned out that the defect in the gas mains had developed without the fault of any person. In Fowler v. Lanning the plaintiff suffered injuries from pellets discharged from the defendant's gun. He pleaded this fact as a sufficient cause of action, leaving it to the defendant to explain the accident. That seems indeed to have once been the law. Today, however, the plaintiff has at least to allege negligence (if not intention) or to set out facts which “shout negligence”; only then does the rule res ipsa loquitur relieve him of the burden of proof, and then only of that burden alone. Ought not a hunter to be responsible for his gun, a gas board for its pipes?

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:

The law governing co-operative housing in Israel is an explicit example of legislative response to social and economic pressures, and psychological needs. In this regard it is, however, not unique, since similar pressures and needs with similar solutions are found in other countries. Here, as elsewhere, the same motivating forces have operated—the desire to possess a home of one's own for reasons of personal dignity and assurance, encouraged by calculated need to hedge against inflation; the increase in population leading to larger demands for housing accommodation, which remained for long generally unsatisfied because of pegged rentals under tenant protection legislation; the high cost of land and building, which called for the optimum utilization of land and raw materials; and the preference for apartment dwelling due partly to the closer social life that it affords, and to which the population was from previous experience accustomed, and partly to the widespread employment of women, which put a premium upon living quarters that required less time and effort for housekeeping. Of these forces, the population pressure, due to natural increase but far more to immigration after the establishment of the State in 1948, and the continuous rise in land prices were particularly significant in Israel.

The forgery of works of art, particularly pictures, is a serious evil that besets the art business world, quite apart from its depressive effect generally. The phenomenon is not new, but never before has it been more prejudicial, perhaps because contemporary painting is far easier to imitate than that of the past, and because of the increasing flow of money into the art markets. These two elements encourage the temptation to forgery, whilst the demand for pictures would possibly be even greater were it not for this nightmare that haunts likely purchasers.

How can the world's art markets be restored to health? Clearly this problem can be tackled by a variety of means. It would resolve itself or would not exist were people honest and upright. The situation would be ameliorated if art buyers were more circumspect in their purchases and the experts consulted to confirm the authenticity of pictures were able to express firm opinions and were more of one mind among themselves. The question, however, may well be considered from another angle, to see whether an answer can be found—or at least considerably facilitated—even if the standard of reasonable care and the expertise of the experts remain as they are at present. We do not have in mind here the criminal and civil sanctions that already exist. Nor shall we inquire into the possibilities of the assistance which may be had from increasing the severity of such sanctions. We shall not examine nostrums but means of prevention.

Sec. 55(1)(b) of the Civil Wrongs Ordinance, 1944, which deals with compensation for the tortious death of a person, prescribes:

This provision is taken from sec. 52(1)(b) of the Cyprus Civil Wrongs Law, 1932(s. 53(1)(b) of the 1950 edition of the Laws of Cyprus) and goes back to sec. 1 of the English Fatal Accident (Damages) Act, 1908 (now sec. 2 of the Fatal Accident Act, 1959).

There is a more general provision in sec. 65 of the local Ordinance (sec. 86 of the New Version):

This section reproduces sec. 62 (sec. 63) of the Cyprus Law, and an explanation given of that provision states that “this incorporates the general principle of English Law”.

A release has been defined as the “giving up or abandoning of the claim or right to the person against whom the claim exists. A release is itself a discharge of the claim or obligation.”

Strictly speaking both releases and covenants not to sue are instruments under seal. A simple agreement, if supported by valuable consideration, has in equity the same effect as a release. Therefore the terms “release” and “covenant not to sue” are now often applied to such agreements, and in the present article they will be used in this extended sense.

The purpose of this article is to discuss the rule as to release, to analyze the reasons underlying it and to make some suggestions for reform.

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?

On 26 November 1968 the General Assembly of the United Nations adopted and opened for signature, ratification and accession a Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. The purpose of this paper is to explain the origin of the Convention, to summarize its principal provisions and to comment briefly upon them, particularly in the light of the discussions that preceded its adoption. We shall not deal in depth with the general principles of law involved in such discussions nor with the historical and political matters closely connected with the reasons that made it “necessary and timely”—to use the wording of the Preamble of the Convention—to affirm that international law does not recognize any period of limitation for some major crimes. Of course, the informative nature of this paper will not preclude some criticism, when pertinent.

The theoretical difficulty behind questions arising out of age would appear to be the inherent lack of clarity in defining the legal nature of the concept in general, that is, what “age” is from a legal point of view and how it can be categorized for various juridical purposes.

Investigation suggests a distinct traditional tendency both among writers and judges to regard the determination of age, for whatever purpose, as a matter of status, and this despite the fact that “status” itself is not clearly defined or sufficiently described by those who employ the term. Thus, for example, Wolff defines it as “the legal category to which a person belongs owing either to his natural condition…or to his legal condition”, and enumerates age, along with unsoundness of mind, as an example of status arising from a person's natural condition. Likewise, Arminjon features age, along with marriage, celibacy and other well-known instances of status, as a matter concerning “l'état des personnes”, while defining status as “l'ensemble des qualités et des rapports de droit qui constituent la condition juridique d'une personne, qui lui marquent sa place et tracent le rôle qu'elle joue dans la famille et dans a société”.

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).

There are two fundamental approaches to the problem of legal interpretation, one concentrating on the use of abstract concepts and their analysis by pure logic, and the second concentrating on policy considerations which underlie legal rules and the function they are to serve.

It cannot be denied that the “conceptual” method appears, at first glance, more “scientific” and precise as compared with the “functional” method, but in real fact it does not always ensure certainty and predictability. In many cases, the use of vague general concepts may lead to unexpected results, because the actual construction given to these concepts by the courts may vary according to the concrete facts involved (e.g. the concept of “proximity” in the law of attempt).

But even if, generally speaking, the “conceptual” method achieves a higher standard of certainty than the other method mentioned, one cannot overlook the fact that in some cases the use of the “conceptual” method may lead to injustice, or at least to a failure to achieve the social aims the legislator had in mind.

The importance of certainty and predictability, especially in criminal matters, is beyond dispute, but the weight given to this value in relation to other social values may differ from society to society and from time to time.

More than a year has passed since the Security Council unanimously adopted Resolution 242 on November 22, 1967, concerning the “grave situation in the Middle East”. On the basis of this resolution, the Secretary-General of the United Nations designated Ambassador Gunnar Jarring as a Special Representative “to proceed to the Middle East to establish and maintain contacts with the States concerned in order to promote agreement and assist efforts to achieve a peaceful and accepted settlement…” It is not proposed here to analyze all the political and diplomatic aspects of the Resolution or its practical prospects to bring about peace in the Middle East. Nor is it proposed to advance any particular interpretation of its substantive contents or to assess its merits and shortcomings. The sole purpose of this article is to examine the legal nature and implications of the Resolution within the framework of the United Nations Charter.

Intellectual curiosity and academic research are not the only motivations for this legal inquiry. Sceptics of the political relevance of such “theoretical” inquiry need only obtain the November 24, 1968 issue of Pravda, the mouthpiece of the Communist Party of the Soviet Union.

The scope of income tax is generally determined in the light of two criteria: the personal link of the taxpayer to the country and the link between the income and the territory of the country imposing the tax. The imposition of tax on the basis of the second of these criteria is known as “the source of the income” approach.

A similar term, the doctrine of “source”, was used in the British income tax system to denote a different theory. That theory was based on the idea that all income must have a “source” and that no one ought to be taxed in a given year unless it can be shown that he had a source from which income could be derived during that year. It should be noted, however, that notwithstanding the linguistic resemblance between the terms used for the two theories, in fact they deal with different matters. Hence, though perhaps historically related, the two concepts should not be confused.

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.

Members of the United Nations have conferred upon the Security Council “primary responsibility for the maintenance of international peace and security” and have agreed “that in carrying out its duties under this responsibility the Security Council acts on their behalf” (article 24 of the U.N. Charter). The question may be asked whether the Security Council lived up to this responsibility during the May 1967 crisis in the Middle East which preceded the Six Day War. Did the Security Council do everything in its power to avoid the clash, and what were the reasons for its failure to avert the crisis?

In order to be able to evaluate the Council's stand, it will be necessary to recall summarily the developments which led up to the hostilities of June 1967, as well as the Security Council's powers under the Charter of the U.N.