One of the recurring issues of Israel labour law has been whether an employee may validly waive statutory rights conferred upon him. This issue had led to a head-on collision between the Supreme Court and the Labour Court, with the latter adopting a position directly contradicting the Supreme Court's precedents on this issue.

On certain issues the Courts are in agreement. Both concede that a waiver is unenforceable where the employee is unaware of his statutory rights. Both concur that labour legislation is cognitive in nature and that an employee may not initially “contract-out” statutory rights conferred upon him. However where the right has already “accrued”—that is, where the employee is entitled by law to claim certain statutory benefits as a result of past employment—the Courts are in open conflict. The Supreme Court has adopted the position that an employee may waive such existing and accrued rights by agreement, may compromise them by settlement and may submit any disputed issue respecting them to an arbitrator for determination.

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?

This Article analyzes the probative standard set by Section 25 of the Succession Law, which, provided that certain basic conditions are met, enables the validation of flawed wills. The Article presents the position taken by the Supreme Court, according to which Section 25 requires that prior to its validation, the authenticity of a will be proven beyond any doubt. This standard is criticized as impracticable and normatively flawed, as is another standard, suggested by some Supreme Court Justices, which would impose on those wishing to validate a flawed will a standard of proof similar to that required in criminal law.

The Article then attempts to create a desirable model for the probative standard found in Section 25. This model is based on disutility equations for decision-making under conditions of uncertainty; it leads to the conclusion that the standard that should be required in order that flawed wills be validated is considerably lower than that demanded by today s case law. The Article claims that there is no significant risk that testators might be led to disregard or neglect the formal requirements set by the Succession Law for writing wills.

In conclusion, some arguments are presented in support of a revolutionary hypothesis: I suggest that the Supreme Court's interpretation of Section 25 reflects an ideology that prefers the mode of asset distribution prescribed by inheritance law over alternative modes, created by individual wills. The Court's preference, however, is not grounded (and cannot reasonably be grounded) in the desire to fulfill the testator's wishes; but rather perhaps it is an expression of the legal system's conception of distributive justice.

In 1941, the Banking Ordinance enacted by the High Commissioner of Palestine defined “banking business” as the “business of receiving from the public on current account money which is to be repayable on demand by check, and of making advances to customers”. The most recently enacted Israeli Banking Law (Licensing), 1981 contains a very extensive definition of banking business which includes no less than thirteen types of transactions.

This certainly reflects a new legal approach towards the economic reality of banking which in and of itself has not changed drastically. Moreover, the peculiar dynamics of the banking business also inspired the legal rule that the Governor of the Bank of Israel should have the right to enlarge the legal definition by recognizing the banking character of other transactions.

In order to determine what major developments have taken place in tax law in Israel over the last 40 years, it is first necessary to formulate criteria with which to estimate the importance or centrality of changes in tax legislation. The emphasis here is on legal developments (in legislation and case law) rather than on changes in the tax system and tax policy. In the field of taxation, legal, economic and social questions are, however, interlinked; and it is moreover, a legal tool — legislation — that determines the tax system and its composition of various tax bases.

The sale of property by a non-owner is an important question in many legal systems. The problem is more acute in the case of movables, since with immovable property the existence of a register of title allows the buyer to check with relative ease whether the seller is in fact the owner. There is usually no register of title to movable property, and the buyer will usually identify the holder of goods who is offering them for sale as their owner.

There are three parties involved in the problem: A — the real or original owner, B — the seller, and C — the buyer. B may be a thief, a finder or A's bailee, or he may have obtained the property from A by misrepresentation, and so forth. In many cases it is impossible to obtain satisfaction from B, either because he cannot be traced or because he is insolvent, and the question of who owns the property, A or C, then assumes vital importance.

Continental systems generally permit a possessor to acquire rights against the signatories of a bill or note despite a forged indorsement, it being sufficient that the sequence of indorsement on the instrument leads to the possessor. On general principles, the Anglo-American law differs in this respect. As early as the eighteenth century, it was held, in Mead v. Young (1790) that the possessor of a bill to order containing a forged indorsement has no right to the bill and is not entitled to demand payment from the parties whose signatures preceded the forgery. This approach was followed by the English Act and the N.I.L. The U.C.C. follows this principle in laying down that a forged signature is inoperative as that of the person whose name is signed. A person who acquires a bill to order on which there is a forged indorsement is therefore not a holder of the bill nor in legal possession of it, nor an owner. He consequently has no right under the bill against parties whose signatures preceded the forgery.

On June 28, 1978, the Israeli Knesset passed a Law which changed the age of criminal responsibility of juveniles, raising the threshold from 9 years of age to 13 years of age. This Law, known as the Penal Law (Amendment no. 3) 1978, is popularly called the “Yitzhaki Law”, after MK Yitzhak Yitzhaki (Likud) who initiated the Law.

From a practical point of view, the Amendment means that police interrogators may not interrogate minors under the age of 13, nor may they open criminal files on such minors or prosecute them. When and if the police are confronted with juveniles suspected of delinquent behaviour the police may take their testimony, and may refer them to the welfare officers, who, operating by virtue of the Youth (Care and Supervision) Law, 1960, are authorized to decide whether the minor requires care, and if so, the kind of care he is to receive.

When Professor Ginossar invited me to address you, he very liberally left the choice of topic to me. “Talk about anything you want,” he said, “about Eshnunna, or about the Land of Israel Movement, or about anything else you consider proper.” This left me in somewhat of a quandary. I might have talked to you about ancient legal history, about Rome, or about the Jewish military colony at Elephantine, in southern Egypt, of the 5th century B.C., or else about the laws of Eshnunna, an Old-Babylonian kingdom of the 18th century B.C. But then one should beware of imposing one's specialties on a general audience, however intelligent, kind and tolerant. At the very best the interest of a few might be kindled, for others the likely result is boredom—albeit in after-lunch talks alleviated by a tendency to post-prandial somnolence.

I might have talked about politics. This—I feel quite certain—would have kept everyone wide awake. But while I do hope that some of you would have agreed with my views, a few might even have been persuaded, I have no doubt whatsoever that others would have disagreed quite strongly. In the end I did not think it proper to introduce that much controversy into this “happy dwelling together of brethren”. If I had been expressly asked to talk about politics, I should have complied without hesitation (and perhaps there may be some other occasion for it). But, since the matter was left to my discretion, I decided against it.

One of the major issues in lawyer's professional ethics is that of the lawyer's duties towards the court and the administration of justice. The question is whether the lawyer has ethical responsibility only towards his client, or whether he also plays a role as a judge's assistant and has responsibilities arising from such a role.

In research on the subject, the problem is not posed in uniform terms and there are no commonly shared solutions. The prevailing trend is to give different answers according to the various roles which the lawyer is supposed to play in a judicial process with an adversary rather than an inquisitorial framework. Such a distinction is often viewed as fundamental just in order to define the lawyer's ethical duties in the civil process. So, it is usually said that in the adversary system the attorney plays a typical partisan role, and that he is client-centered because his task is only to represent his client with the best zeal and by all the means permitted by law. Hence comes the metaphor of the lawyer as a “hired gun”, who must use all his abilities only to serve the client.

Anyone who has studied the case law of Israel in the 1990s and the recent Bill on the issue of plea-bargaining, will have found it difficult not to have detected signs of the following phenomenon, that has started to take root: the growing readiness to permit the prosecution to dictate to the court the exact sentence. Does this not deviate from the accepted and appropriate division of roles between the court and the prosecution? It would also appear, that at present, there are not many who support the idea that the victim of the crime should be informed of the pleabargain that is being negotiated and that his reaction to it should be heard before the court decides whether or not to adopt it. Is this the appropriate level of consideration that should be paid to the victim, according to Israeli law, particularly in our age of emphasizing the constitutional nature of human rights?

It is a great pleasure and honour for us to present to Professor Nathan Feinberg on his 80th birthday, as a token of admiration and affection, this issue of the Israel Law Review, which marks the conclusion of the first ten years of publication.

As teachers and students of the Law Faculty of the Hebrew University, we are grateful to him for the leading role he played in the creation of that Faculty. As jurists we admire his undisputed mastery of international law, and as Jews and Israelis we are indebted to him for the service he has rendered to the entire Jewish people, to the Zionist cause and to the State of Israel.

Nathan Feinberg was born in Kovno on June 6, 1895. His aptitude for learning was such that the severe numerus clausus did not prevent his admission to the Russian high school, from which he graduated with distinction in 1914. At the same time he was given a Jewish and Hebrew education privately. He then proceeded to the Faculty of Law of the University of Zurich, from which he graduated magna cum laude in 1918.

The three papers published hereafter were presented at an International Conference on the Ethics and Responsibilities of the Legal Profession held in Tel Aviv from 17–21 August 1980. As could be expected, the views expressed therein are not identical, but since they are all connected with the manner in which the nature and the function of the profession is conceived, it may be useful to outline the attitude of the law of Israel on the subject.

The Chamber of Advocates Law, enacted in 1961 to supersede the Advocates Ordinance, 1938, declares in sec. 54 that —

The statute apparently places at the same level the lawyer's duties to his client and to the court: the order in which it enumerates them does not indicate any intention of priority—any more than in the Decalogue the respect due to one's father can be said to take preecdence over that to one's mother. The same two fundamental duties are mentioned, in reverse order, in the Rules of Professional Ethics made in 1966 by the National Council of the Chamber of Advocates with the approval of the Minister of Justice.