During the short period since the middle of the present century the courts of more than one country have been called upon to deal with unprecedented claims: actions against a parent in respect of his liability for the plaintiff's birth under handicap, whether physical (congenital disease) or social (illegitimacy). Proceedings have also been taken against the State of New York, to hold it liable for an institution for which it was responsible, a Manhattan hospital, which failed to prevent a rape from which the birth resulted.

Together with our juridical interest in the solution of the problem—and perhaps even preceding it—we are curious to understand why it has not arisen before and now suddenly emerges simultaneously in a number of countries without apparently any mutual influence or awareness.

The broad meaning of the term res judicata covers all of the various possible binding effects of a judgment on subsequent litigation.

It may be assumed that the need for finality of judgment is recognized by many, if not by all, systems of law. The present study, however, is directed to the examination of the rationale behind the doctrine of res judicata and the meaning of the identity of actions, as reflected in Anglo-American and Israeli law.

Res judicata is evidently not one of the easy problems in jurisprudence as many have noted in the past. As to England and Israel in particular, one can hardly say it has been adequately explored.

It should be pointed out that the discussion is focused on judgments in personan, as distinguished from judgments in rem or quasi in rem; it does not deal with criminal cases, nor with decisions of administrative tribunals.

All three legal systems recognize two facets of res judicata. In spite of variations in terminology, these basic principles are usually held and understood identically.

Eighteen years after attaining independence Israel remains essentially a common law country. Introduced by the British Mandatory administration to supplement the Ottoman legislation in force at the time of the British occupation of Palestine, the common law has been retained by the Israeli legislator, so far as not modified or replaced by local legislation. But this common law, far from being residual only, also embraces a considerable body of interstitial law developed by two generations of judges, British, Palestinian and Israeli, in the process of applying and interpreting statute law—whether Ottoman, Mandatory or Israeli—according to common law methods. On the other hand the importation of common law institutions was neither wholesale nor systematic and in a number of fields no clear line of demarcation can be drawn between domestic and English law.

The legal practitioner may well be excused if his approach to comparative law resembles somewhat that of the defence lawyer putting forward the “rolled-up” plea in an action for defamation. Having questioned the very existence of comparative law, he cannot be blamed for covering his retreat by asserting that even if it does exist, it has, for him and his clients at least, no obvious value or significance. Should he refer to the writings of some of the leading acknowledged authorities in the field, he may find that his doubts, far from being lessened, are confirmed and strengthened. What must he feel, for example, when informed by Sir Frederick Pollock, participating in the first International Congress of Comparative Law at Paris in 1900, that “le droit comparé n'est pas une science propre, mais qu'il n'est que l'introduction de la méthode comparée dans le droit.” Should he prefer a more modern exposition, he may refer to Gutteridge writing some fifty years later. The methodological, as distinct from the juridical, character of the subject will appear to be confirmed. “‘Comparative Law’ denotes a method of study and research and not a distinct branch or department of the law. If by ‘law’ we mean a body of rules, it is obvious that there can be no such thing as ‘comparative’ law…[that is to say] any independent rules for the regulation of human relationships or transaction. …[C]omparative law is merely a convenient label attached to a particular method of study and research.”

The international lawyer, too, who adopts some such definition of his field as “that system of laws and regulations which those who operate on the international scene recognize as being necessary for their orderly conduct”, is likely to adopt a similar view, for he is unable to find any system of rules and regulations to which he can apply the term comparative law.

The problem of personality in international law is destined, apparently, to remain an obstacle to development, control and responsibility-norms binding on international non-State and non-IGO entities. In short, is this international social phenomenon still subject to the dogma of “States only” in international law? Or, conversely, is international law still the law for inter-State relations only? This writer's views are on record with an analysis of the NGO-phenomenon; he would like to add a few observations on the subject of International Corporations (IC), and on the impact they might possibly have on the general problem of personality of the non-State international entity.

When, thirty-six years ago, the structure and organization of the Bank for International Settlements (BIS), Basle, had been settled by a team of noted draftsmen, Sir John Fischer Williams noted in a paper on this subject: “We theorists have to take heed to build our doctrines on tendencies rather than on ‘facts’; otherwise, when we have finished constructing our systems, it may happen that the facts are no longer what they were when we started building, and the system is out of date before it is established.” In the meantime, several other corporations of a similar nature have been set up but in spite of a number of valuable papers on this subject, we are still without a systematic integration of what has gone on around us—although it is now clear that the traditional pedagogic categories have become unsatisfactory.

Pindar said that law is king. Gény called law the primordial necessity of order in social life. It is impossible to conceive of a time since men first organized in tribes when law was not a vital force in cementing society together within social groups; yet in the relations of national States with each other we continue to rely on force instead of mutual understanding to establish international order. Those who ignore history, Santayana has said, must pay the penalty of repeating it. Today we are approaching with terrifying speed the point at which the weapons we have created and upon which we rely for world peace threaten to destroy their creators. The force of destiny compels us to seek within ourselves, as did the Prophets of Israel, the source of world peace. What I wish to propose is the utilization of the fundamental principles of law which are common to most nations to establish a closer international understanding as a step toward world peace; and more specifically the employment of the principles of equity as a corpus aequitatis to constitute the basis of a world legal order.

The idea of a universal law has appeared many times in history. In the seventeenth book of the Iliad Homer speaks of law as related to a larger whole. The Greek Stoics found the basis of universality in the laws of nature as interpreted by reason, a law which Cicero was later to describe as “lex sempiterna et immutabilis.” Kant conceived of a Weltbürgerrecht, a cosmopolitan law, as an essential goal of human progress. Early in the eighteenth century Giambattista Vico, whom Croce has called the germ of the nineteenth century, proposed to unite law, politics, economics and philosophy in “una gran citta del monde”. There have been moments in history when the idea of a law which would unite nations found practical expression. The ius gentium, that part of the local law of Rome which was basically in accord with the private law of other nations, contributed, perhaps as much as the arms of Roman legions, to the Pax Romana which prevailed for centuries in much of the civilized world. The Pandectenrechtswissenschaft, the law of the Pandects modified by infusion of Germanic law, prevailed for nearly three hundred years among a group of national and semi-autonomous States stretching across central Europe. But the Pax Romana crumbled before the barbarian invasions of the third century of the Christian era, and after the end of the seventeenth century the law of the Pandects split into many separate systems. A contemporary example of law uniting nations is the experience of four Scandinavian countries, of five different ethnic stocks, joined in a unified legal system based largely on indigenous customary law.