It would be an unforgivable presumption on my part if I attempted to give my observations in this lecture a world-wide focus. At best, they may be suggestive beyond the compass of the small part of the world in which I have gained, by study and by experience, the insights which support my words. At the least, they will bring to light my particular appreciation of the liberties and the constraints which judges of courts in a parliamentary democracy enjoy and endure in the discharge of their duties.

What do I mean by “the institutional character of the judge”? Imagine, if you will, that a man or a woman has been appointed a member of a court. That person has joined an organization which, by constitution or by statute or by both, has been given form, size and function. The position provides security of tenure, an assured salary, and a pension upon due retirement or after a prescribed number of years of service. It demands a stated length of experience in law which has been underpinned by educational qualifications that any aspirant to membership of the Bar must meet. In my country, as in Great Britain and the United States, and as in Israel, the neophyte judge is neither a civil servant, as is the case elsewhere, nor has he joined a specialized branch of the executive government, as is also the case elsewhere. What faces him or her in his or her work, be it as a trial judge sitting alone or as an appellate judge sitting with two or four or more colleagues? To what extent does the judicial system, of which he or she is now part, absorb him or her, and how much freedom does he or she have, to remain or become an individual per se?

The First Amendment to the United States Constitution erects, in Thomas Jefferson's phrase, “a wall of separation between church and state”. The United States Supreme Court has, with a consistency not evident in all areas of constitutional law, supported the “wall of separation” metaphor even in the face of warnings that “a rule of law should not be drawn from a figure of speech”. The origin of the phrase has been traced to the words of Roger Williams, the founder of the colony of Rhode Island in 1636, who, in his concern over worldly corruption infecting the churches, wrote of “the hedge or wall of separation between the garden of the church and the wilderness of the world…”. With this imposing legal history behind it, the principle of non-intrusion of religious law into American civil law should stand on incorruptible footing. Yet, a survey of recent cases discloses principles of Jewish law relied upon by litigants and on occasion by judges in controversies before tribunals in the United States.

According to Article 24 of its Statute, the International Law Commission “shall consider ways and means for making the evidence of customary international law more readily available”. The existence of such law is indeed difficult to prove even at the national level; how much more so in the international sphere. This, however, should not mislead one to think that there are no problems with regard to treaty law. On the international level it may not be too difficult to determine whether a treaty exists on a particular question, but information about the exact status of the treaty (its entry into force, the parties thereto, the amendments thereof, etc.) in most cases is not easily available. Wherefore, I proposed many years ago the creation of an International Legislation Register which would contain up-to-date information at least about the status of multi-partite treaties of general interest.

An Israeli lawyer who reads Professor Engel's very interesting remarks “On the Evidence of U.S. Treaty Law” will feel like the poor man who reacted to a rich man's complaints by saying: “For you the diamonds are sparse, for me the soup is thin”.

In Israel there are two official publications which give information about treaties:

1) Kitvei Amana—Israel Treaty Documents; and 2) Yalkut HaPirsumim—Government Notices. The Ministry of Justice is responsible for these two publications but it follows the advice of the Foreign Ministry in all substantive matters concerning the publication of information on treaties.

The treaties to which Israel has become a party are published in Kitvei Amana. So far, some 22 volumes have been published in this series. Bilateral agreements are published in the two languages in which the treaty was concluded, i.e., Hebrew and the official language of the other party. As to multilateral conventions, a Hebrew translation of them is published, together with the original text in one or two of the official languages of the treaty. For example, the English and the French version of the U.N. Charter were published, as well as a Hebrew translation. Together with the text of the treaty, some additional relevant information is also given: a list (with dates) of the signatures and ratifications of the treaty, date of its coming into force, date of its coming into force for Israel.

It is submitted that even if the hapless outsider cannot bring an action for damages because of the existing state of the law regarding fiduciary duties and breach of statutory duties, he still has an equitable remedy of rescission of the contract based on quasi-contractual principles. The crime of fraud, under secs. 13 and 54, respectively, would be made the basis of setting the contract (of sale or purchase) aside. To support this proposition we shall explore the quasi-contractual principles which enable one contracting party, the victim of a crime committed by the other party in entering the contract, to defeat this contract.

In Browning v. Morris, in an oft-quoted statement by Lord Mansfield, the following principle was declared: But, where contracts or transactions are prohibited by positive statutes, for protecting one set of men from another set of men; the one, from their situation and condition, being liable to be oppressed or imposed upon by the other; there, the parties are not in pan delicto; and in furtherance of these statutes, the person injured, after the transaction is finished and completed, may bring an action and defeat the contract.