First, I want to express my gratitude and sense of honour in being invited to deliver the Lionel Cohen lecture for 1995. The relationship between the Israeli and the British legal systems is a close and mutually beneficial one, and we in Britain in particular owe large debts to the legal community in Israel. This is especially the case in my field, public law, where distinguished academics have enriched our academic literature, notably Justice Zamir, whose work on the declaratory judgment has been so influential. Israeli courts, too, have made major contributions to the development of the common law generally and judicial review very notably.

In this lecture I want to discuss the process of constitutional reform in the United Kingdom, and to explore some of the difficulties that lie in the way of reform. Some quite radical reforms to our system of government — the introduction of executive agencies in the British civil service, for instance—have been introduced without resort to legislation. There has been a spate of reform to local government and the National Health Service.

My story is full of holes. The first hole, or rather, ditch, was dug in 1930 by the municipality of Haifa. An Arab, Dr. Caesar Khoury, fell into the ditch and fractured his shoulder-blade.

Could Dr. Khoury recover? The law of torts of mandatory Palestine was found in the Mejelle — an Ottoman code of Moslem civil law. Did the Mejelle provide a remedy in the case of personal injury? “Unfortunately,” said Judge Francis Baker, who delivered the opinion of the Supreme Court of Palestine, “the Mejelle dealt with liability for damages caused by animals to property, but it was ‘silent’ with regards to injuries caused to persons”. Therefore, Dr. Khoury could not recover.

The second hole in my story belongs to a Jew, Feivel Danovitz. In 1939, Danovitz was run down by a truck in Tel Aviv. He sued the driver and the owner of the truck. The lower courts of Tel Aviv decided that if the Mejelle did not deal with liability for personal injury, that meant that there was a hole in the tort law of Palestine. Such a hole could be filled by recourse to the English common law in accordance with the provisions of Article 46 of the Palestine Order-in-Council, 1922. Since the English common law recognized liability for personal injury, Danovitz could recover.

Two questions are central in the law of contracts: first, what are the conditions necessary to the formation of a contract; second, what is the scope of the contractual obligation. The first question deals with the two basic requirements for the formation of a contract — offer and acceptance, whose substantive components are the intention to form a legal obligation and definiteness. It also deals with the substantive requirement of writing, in those classes of contracts in which it is required, and the requirement of consideration, in those legal systems in which it exists. The second question deals with those rules which determine the remedies for breach of contract such as specific performance, damages and restitution. In this article I shall try to identify and evaluate recent trends in Israeli law concerning these questions, as demonstrated by decisions of the Israeli Supreme Court, and to evaluate these trends by measuring their consistency with one another.

In 1991, Israel enacted a new mental health law entitled the Treatment of Mental Patients Law, 1991. This law includes, for the first time, a provision authorizing involuntary outpatient commitment (“IOC”). In its simplest form, IOC is the procedure by which an individual who is determined to be mentally ill is ordered to comply involuntarily with mental health treatment outside of a hospital setting. The new Israeli involuntary outpatient commitment provision, known as “compulsory ambulatory care”, provides that an individual who meets the standards for civil commitment may be committed to involuntary outpatient treatment as a condition of release from inpatient care, or as a dispositional alternative to involuntary hospitalization.

Originally enacted in the United States as a condition of release for persons being discharged from mental hospitals, or as an alternative to involuntary hospitalization, involuntary outpatient commitment has now been enacted in various forms in different countries throughout the world. The new Israeli IOC law is modeled after American IOC laws, (particularly those enacted in the early 1980's), which seek to provide involuntary mental health treatment to persons who do not meet a strict test of dangerousness for involuntary commitment.

Ever since 1932, when Adolph Berle and Gardiner Means described the central problem of corporate law as the separation of the ownership of a company from its control, scholars in the fields of law and economics have been searching for a solution. It is difficult for a company that wishes to grow to remain under family ownership. Few financiers are capable of raising by themselves large enough sums of money to fund the capital requirements of such a company, and, in any event, it is not worthwhile for them to invest all of their money in one company and to be exposed to the risk that the company may fail. A company that wishes to grow must therefore raise funds from a number of investors, and, if large sums of money are involved, from numerous investors.

The Charter of the United Nations proclaims the equality of nations large and small. Nowhere is this principle violated more than in the case of Israel. And nowhere is the inequity more malevolent than in the U.N. human rights system. Reasonable and equitable treatment of a multiplicity of human rights claims throughout the world ought to be one of the hallmarks of United Nations actions. It is not. Instead, for Israel's foes human rights is the rhetorical weapon of choice. And the stage for their campaign is the United Nations. Neither the medium, nor the strategy has changed since the signing of the Oslo Declaration of Principles or the subsequent agreements on the West Bank and Gaza Strip.

To well-meaning human rights advocates around the world the United Nations provides a source of hope, a channel for their energies, a vehicle for their causes. Their very presence invests the U.N. human rights fora with an air of legitimacy and an aura of power. The environment is beguiling both to observers and political participants. But looking beyond the hundreds of resolutions, the thousands of pages of paper in six languages, it is possible to expose the malignant nature of the United Nations human rights system.

In 1962, I delivered the Edinburgh Gifford Lectures on The Deed and the Doer in the Bible, the tenth and last being entitled The Doer after the Deed. This article presents the case with which I concluded: Judas through whom an unprincipled administration could lay hands on the one they feared. In Matthew it leads to self-punishment, by hanging. In Acts punishment is inflicted from above, he falls and bursts. (Similarly, Papias has him bloated, inflamed, perishing in his filth.) Church tradition, setting out from Matthew, finds here the prototype of the very worst evildoer, adding to his outrage of selling the Saviour the ultimate one of self-slaughter. This has become the dominant interpretation — though a different one from the early third century will be looked at below. A representative German account runs: Das Ende des Judas … entspricht jüdischem Empfinden, für welches der Satz gilt (Tobit 12.10) ‘Die Frevler sind Feinde ihres eigenen Lebens’, The end of Judas … reflects Jewish feeling, in line with the dictum ‘The evildoers are enemies of their own life’. But it is a misreading, it does no justice to Matthew at all. Let us go through the story.

It gives me great pleasure to dedicate this contribution to a teacher and scholar whose now classic study has done so much to enhance our understanding of the Old Babylonian law-code from Eshnunna.

Codex Eshnunna (CE) 17–18 read as follows:

• I13. DUMU.LÚ a-na É e-mi-im tir-ha-tam li-bi-il-ma

• 14. šum-ma i-na ki-la-al-li-in iš-te-en a-na ši-im-tim

• 15. it-ta-la-ak KÚ.BABBAR a-na be-lí-šu-ma i-ta-a-ar

• 16. šum-ma i-hu-ús-si-ma a-na É-šu i-ru-ub

• 17. lu-ú a-hi-za-n[u-u]m [l]u kal-la-tum a-na ši-im-tim it-ta-la-ak

• 18. ma-la ub-lu ú-ul ú-še-ṣi wa-tar-šu-ma i-le-eq-qé

• 17. Should the son of a man bring the betrothal payment to the house of the father-in-law, if one of the two dies, the silver shall return to its owner.

• 18. If he marries her and she enters his house (and) either the marrier or the daughter-in-law dies, as much as he brought he shall not hand over; he shall take its surplus.

This paper will deal with the reinstatement of wrongfully dismissed employees in the Israeli law of collective bargaining. According to the current state of Israeli labor law, this question is connected with many other issues, such as the difference between individual and collective disputes (a problem most exhaustively developed in the law of strikes), the ability of an individual employee to enforce rights deriving from a collective agreement and the application of the regular contracts remedies law to collective agreements. We begin with the collective agreement and its administration.

Israel's Collective Agreements Law of 1957 exhibits an intriguing amalgam of American and continental influences. From America the act borrowed the concept of an exclusive bargaining representative. It was contemplated that in a special collective agreement between a labor organization and a single employer or in a general collective agreement between a labor organization and an employers' association, one labor organization only would be entitled to enter into the collective agreement — the labor organization with the largest union membership. An agreement made by such a representative labor organization would directly bind all employees in the plant or trade covered by the agreement, whether members of the representative labor organization or not.

This study compares how four countries, the United States, Canada, Britain and Israel, conceive active and passive euthanasia and the right to die in dignity. I start the discussion by clarifying the scope of the analysis and by shedding light on the concepts of autonomy and dignity. Section II proceeds by drawing attention to the familiar distinction between active and passive euthanasia, reviewing the current legal positions in the United States, Canada and England. Section III addresses Ronald Dworkin's distinction between experiential and critical interests, and further contemplates the analogy he draws between the destruction of life and the destruction of masterpieces of art. The section continues by contrasting Dworkin's assertion that what we seek is life in earnest, not any form of life, with Leibowitz's view that human life is sacred. In this context I also refer to the recent Scheffer decision, the only ruling at this time by the Israeli Supreme Court on the issue of death with dignity. Section IV considers the Eyal case, involving an amyotrophic lateral sclerosis patient who expressed his wish not to be connected to a respirator. I assert that in such instances, the patients' autonomy would be sustained and their dignity better served by helping them die. It is not always true that keeping a person alive is to treat her best. In some situations we respect a person and her dignity when we help her cease living. My justification for helping such patients fulfill their request rests on the assumption that they freely and genuinely expressed their will to die, and that they persist in expressing that desire.

Among the best known Aramaic documents from Elephantine are the so-called “marriage contracts” (TAD B2.6; 3.3,3.8; 6.1–4). Three of these are intact (TAD B2.6; 3.3), or virtually so (TAD B3.8), and are written by the scribe Nathan b. Ananiah (TAD B2.6; 3.3) and his son Mauziah (TAD B3.8) respectively. Mauziah wrote one of the fragmentary documents (TAD B6.4) and, on the basis of the handwriting, probably another one as well (TAD B6.1). Both are professional scribes with several other documents to their credit: Nathan — TAD B2.7; 3.1; Mauziah — TAD B2.9–10; B3.5. They were well-versed in legal terminology and so we must pay careful attention to their formulations, according appropriate significance to omissions or additions as among the various contracts. So, too, must we probe the legal realia underlying each document to see how these may account for unique formulations and revisions.

In 1995, the Association Agreement between Israel and the European Community was signed in Brussels. This instrument is the product of years of negotiations. Europe's traditional policy on a linkage between the nature of its economic and political ties with Israel and progress in the Middle East peace process have led to static relations between the two, despite the importance attached by the Community to the region as part of its Mediterranean policy. The achievements of the Israeli-Palestinian (and Israeli-Arab) peace process, which was renewed with the October 1991 Madrid Conference, have at last enabled Israel and the Community to establish the Association status sought by Israel. A true comprehensive understanding of the Association Agreement necessitates therefore an examination of several other subjects such as the previous relations between the sides and the legal arrangements institutionalising these relations; Israel's trade position with Europe; the European Community's Mediterranean Agricultural and Commercial policies, and many other. This, however, cannot be done within the limits of this paper. Instead, this section merely seeks to briefly survey the legal regime embodied in the Association Agreement, that is, its general structure, main features and important legal, economic and political provisions. It should be emphasised that no detailed analysis of the provisions of the Association Agreement is intended, for the Association Agreement encompasses many fields and areas.

Much has been written on the law of retaliation, both by the specialists who studied the sources of the Ancient Near East that are different from Israel and by those who made Israel the subject of specific studies.

Among those who may be numbered in the first group, we shall quote Cardascia. Among his most recent studies connected with the subject considered, we shall mention: “Réparation et peine dans les droits cunéiformes et le droit romain”, in La responsabilité à travers les âges, ed. par M. Boulet-Santel, (Paris, 1989) 1–45; “La peine dans les droits cunéiformes”, in (1991) 55 Rec. de la Société J. Bodin 37–49. But the most incisive study, on which we shall dwell at length, is: “La place du talion dans l'histoire du droit pénal à la lumière des droits du Proche-Orient ancien”, in Mélanges J. Dauvillier (Toulouse, 1979) 169–183.

The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (“the Interim Agreement”) represents another stage in the implementation of the framework established in the Declaration of Principles signed between the Government of Israel and the Palestine Liberation Organization (the “PLO”), commonly known as the “Oslo process”. In essence, the Interim Agreement provides for the establishment of self-government arrangements in the West Bank and the Gaza Strip, as envisaged in the Declaration of Principles, while explicitly superseding the arrangements which applied in the Gaza Strip and the Jericho Area since May 1994. In addition, the Interim Agreement provides for “direct, free and general political elections” to be held in the West Bank and the Gaza Strip.

The aim of this section is to acquaint lawyers with the general framework of the Agreement, and the primary legal and political issues dealt with by the Interim Agreement, rather than to describe the specifics of each of its many provisions. Where required, reference will be made to the Declaration of Principles and to previous Agreements concluded between the Parties. At times, reference will also be made to the Camp David Framework of 1978.