One of the fields of study which has been developed in recent years is that of Bioethics and the Law, including questions relating to the transplanting of organs. The problems raised by organ transplants are of concern to numerous disciplines, and the present issue of the Israel Law Review examines this topic from various points of view — ethical and halakhic, as well as legal.

In his article on the ethical implications of the buying and selling of organs, Noam Zohar subjects the generally negative attitude adopted towards both practices to a philosophical analysis, and argues that neither one is as objectionable as it appears at first sight. This article also poses a challenge to the application of traditional legal reasoning to the area of biomedical law.

The halakhic position on organ transplantation is presented by Mordechai Halperin in a wide-ranging discussion of the topic. Of particular interest are his remarks concerning the possibility of coercing organ donation, and of trading in human organs in accordance with Jewish law.

Today is a day of celebration for Israeli law. It is a celebration in honour of a man, Professor Feller, on his eightieth birthday, and a celebration in honour of a book, Elements of Criminal Law, upon the publication of its third volume.

A story is told about Chief Justice Cullen of the New York Court of Appeals. It seems that when faced with a particularly hard case, after all the judges would express their views and no appropriate legal result would emerge, Judge Cullen would pound on the table and say: “Back to the books!” I shall therefore begin with the book.

Nearly fifteen years have passed from the time Professor Feller began the project to its completion. But, in truth, the project began some three decades earlier, when he began to research and teach criminal law. The book Elements of Criminal Law transforms Israeli criminal law from a practical field — the domain of judges and lawyers — to a scientific discipline.

The subject matter of this article is, at bottom, a practical problem. It accepts that people have a right to privacy and that this right should find proper protection in the law. It asks, simply, whether such protection is at all feasible given the particular technology of broadcast by satellite.

For the purposes of investigating this problem several issues must be addressed. First is the nature of the violation of privacy involved. Our concern here is principally with TV news broadcasts. We begin from the point where the debate over “what is in the public interest versus what the public is interested in” has ended; there will be general consensus that the content of a certain broadcast represents a violation of an individual's privacy and one about which the law should do something. An example might be the filming in the public domain of a private individual caught in the shock of personal grief or tragedy. In such a case we would need to investigate the nature of the injury involved in any subsequent broadcast of these sounds and images, and to ask what dimension, if any, is added to this injury by their simultaneous broadcast across the globe.

Transplantation of organs from live persons may take place without any payment to the donors, and this involves relatively few moral problems. Gift donation appears to be widely accepted as a laudable and welcome form of benevolence. Even though an organ gift may entail some risk to the donor, his or her consent — provided that it is freely given and properly informed — renders such risk non-objectionable.

Gift donation cannot, however, be expected to fill the large and growing demand for transplant organs. Thus, the issue of a market in organs has for some years now been the subject of ethical and legal scrutiny, and has been addressed by (generally prohibitive) legislation. What follows is intended as a critical survey, focusing initially on organ-buying, and then on organ-selling.

I. Survey of Transplant Techniques

The kidney is one of the few organs which today can be successfully transplanted from a living donor to an ailing recipient. A healthy donor can function satisfactorily with a single kidney; therefore the removal of one kidney for transplantation does not significantly endanger the donor's life. However, removal, or even partial removal, of other organs, such as the heart, lungs, or pancreas, will present a serious risk to the health and life of the donor.

In addition to organs, skin, bone marrow, blood and other body parts can be transplanted from living donors.

A. Kidney Transplants

The kidneys function to regulate the body's electrolyte and water balance and eliminate various wastes. Severe kidney dysfunction endangers the patient's life, and requires treatment by dialysis or kidney transplant. Up until a decade ago, the life expectancy of patients treated by dialysis exceeded that of patients who underwent kidney transplants. Over the past decade, the life expectancy of patients who have undergone kidney transplants from deceased donors has increased to a point where it is now comparable with the life expectancy of patients on dialysis.

I shall address two concerns in this paper: first, what retributivism is, and second, how one justifies retributivism as the only proper theory of punishment. Since this paper is necessarily short, treatment of these topics is likewise abbreviated, although hopefully not so abbreviated but that it whets the appetite for those who wish to pursue them in greater depth.

Retributivism is the view that we ought to punish offenders because and only because they deserve to be punished. Punishment is justified, for a retributivist, solely by the fact that those receiving it deserve it. Punishment of deserving offenders may produce beneficial consequences other than giving offenders their just deserts. Punishment may deter future crime, incapacitate dangerous persons, educate citizens in the behavior required for a civilized society, reinforce social cohesion, prevent vigilante behavior, make victims of crime feel better, or satisfy the vengeful desires of citizens who are not themselves crime victims.

On January 1, 1989, the State of Israel abolished the remaining customs duties and charges, having equivalent effect on imported products originating in the European Communities (hereinafter the Community), in accordance with the Free Trade Agreement (hereinafter the FT Agreement) concluded on May 11, 1975, between the Community and Israel.

The FT Agreement, which sets out to create a free trade area in the territories of the contracting parties, was the result of the previously existing relationship between the Community and Israel, as well as the emergence of the Global Mediterranean Policy within the Community. The FT Agreement attempts to foster economic activity by promoting expansion of trade and cooperation in reciprocal areas of interest, thus creating fair competition and contributing to the development and expansion of world trade.

In a number of related papers Michael S. Moore has advanced a powerful theory of retributive punishment. The position as stated is simple: “retributivism is the view that we ought to punish offenders because and only because they deserve to be punished”. Desert is a necessary and sufficient condition for just punishment. However simple and straightforward the view, it still needs to be defended and Moore has been energetic in defending his corner against traditional objections and against replies that his account has attracted since first publication. His latest effort invites readers to pursue these problems in still greater depth. This is an invitation I am happy to accept. First I want to reexamine the charge that there is circularity in his account and second, I want to look more closely at the intuitions which ground his acceptance of the principle of desert.

One worrying thought, for Moore, is that he may be begging the question. His argument proceeds by inviting us to consider a range of cases. In “The Moral Worth of Retribution” the focus is on a couple of savage murders. In “Justifying Retributivism” we are asked to practice Kant's thought-experiment: how should we deal with the last murderer before we leave the island; and ponder the fate of Dostoyevsky's nobleman who set his dogs to tear a child to pieces.

The Israeli Supreme Court addressed the issue of kidney donations from the mentally incompetent in Attorney General v. A and Others. The Supreme Court reversed a District Court decision which permitted the transplant of a kidney from a 39 year old mentally incompetent son to his 65 year old father, who was suffering from severe renal failure. In permitting the transplant the District Court noted the uncontested fact that the son was receiving the best possible care from his father, and reasoned that it was in the best interests of the son to give up a kidney in order to continue receiving his father's devoted care. In reversing the District Court's decision, the Supreme Court emphasised the need for the establishment of a “clear and substantial benefit” to the legal incompetent before any of his or her organs are transplanted to another individual. The Court was not inclined to accept the more subjective substituted judgment approach found in some similar American cases. The interests of other individuals, or even of the community as a whole, may not be preferred over those of the incompetent person. In the present case, no such “clear and substantial benefit” accruing to the son from the kidney donation had been demonstrated. Amongst the reasons given by the Court for this finding was the existence of a doubt as to the chances of a successful transplant in light of both the father's age and the seriousness of his condition. It was also unclear why the son could not receive the same quality of care from his siblings as he had received up to now from his father.

The Permanent Court of Arbitration was established by the First Hague Convention of 1899 on the Peaceful Settlement of Disputes, as revised by the First Hague Convention of 1907 on the Peaceful Settlement of Disputes. It is not a court in the accepted sense of the word, but consists of a panel of persons able and willing to assume the duties of arbitrator in international disputes. Israel acceded to the First Hague Convention of 1907 on 17 June 1962. Under the Convention, each State Party is entitled to form a “national group” of arbitrators, not more than four in number, and their names are included in the panel. The Israel national group today consists of the following (in order of appointment): Shabtai Rosenne (1962), Moshe Landau (1968), Meir Shamgar (1989), and Ruth Lapidoth (1989).

The aim of the Hague Conference on Private International Law is to work towards international unification of the rules in this area. Its hundred years of activity, and particularly the past forty years, have been devoted to producing conventions unifying the rules of law in the three central issues of private international law: jurisdiction, choice-of-law, and the enforcement and recognition of foreign judgments. These three distinct issues correspond to three distinct stages of litigation. The rules of jurisdiction answer the question, which state's courts have jurisdiction to decide a case or, from the perspective of any given state: does its courts have jurisdiction over the case? Choice-of-law rules, in contrast, answer the question, which law should govern the case, irrespective of where it is being adjudicated? Finally, the rules relating to foreign judgments define the terms on which a decision given in one state will be recognised and enforced in another.

The Psalmist's wrote: “For my father and my mother have forsaken me, but the Lord will take me up”. The eleventh-century commentator Rashi explains that this abandoned child, forsaken by his father and mother, is actually a fetus. “For my mother and father have forsaken me — [i.e.] during coition, they thought of their own enjoyment, and having finished their enjoyment, he turns away and she turns away; But the Lord will take me up — [i.e.] the Holy One Blessed Be He protects the semen and creates the fetus”. This graphic and surprisingly poignant depiction of the bedroom is an attempt to portray man's existential solitude from the very moment of conception. He is abandoned by his parents, who were partners to his conception. They forsake him as soon as they complete their sexual intercourse, since their exertions were meant for pleasure, not for childbirth. At this point, intercession comes from God, whom the Sages elsewhere say is the third partner to the creation of man. God assumes responsibility for the continued development of the embryo from conception onward. The underlying assumption of this view is that childbirth is an incidental byproduct of sexual relations, which are primarily intended for mutual pleasure.

The term “guilt” connotes many different phenomena: theology, philosophy, ethics, psychology and law all contributed to the variety of connotations. It is not my purpose, nor do I pretend to engage in etymological or anthropological research into the evolution of the various aspects and concepts of guilt: I shall try to describe and distinguish only those phenomena of guilt of which judges may have to take cognizance for the proper exercise of punitive discretion.

First and foremost, there is “guilt” within the meaning of criminal law. On the one hand, guilt is spoken of as denoting the mental element in crime: the guilt of one who committed a criminal act — actus reus — presupposes the criminal mind — mens rea; or, an actus reus is transformed into guilt by the supervenience of mens rea. Whether the mens rea is intent or wilfulness, or only negligence or recklessness, does not affect the incidence of guilt, but may well raise the question of degree of guilt. On the other hand, “guilt” is the result of a verdict to the effect that the accused is criminally responsible (“finding of guilty”), and it is in this sense that the accused may “plead guilty”.

The enactment of Basic Law: Human Dignity and Freedom marks the beginning of a new era in Israeli law. This is a fitting opportunity to sketch an initial outline for the relationship between the constitution and the substantive criminal law, and the effect of constitutional principles on penal law. The truth be told, the constitutional principles already existed prior to the enactment of the Basic Law. And if, for example, we examine Prof. Feller's approach to criminal law, we cannot but be impressed by the highly developed constitutional element. Nevertheless, Basic Law: Human Dignity and Freedom does provide an excellent excuse for addressing the subject. Moreover, its enactment paves the way for certain interpretive changes in Israeli penal law, and because it allows for judicial review of the legislature of the future, some clarification is called for as to the limits of legislative power in the field of criminal law in light of fundamental constitutional principles.

Basic to constitutional law and criminal law is a shared image of human beings. It is a conception of human beings as “morally” autonomous, with the basic faculty to understand reality and distinguish right from wrong, able to contribute to developing social norms and to understand and internalize them, competent to decide how to act and capable of realizing that decision.

Property rights exist only in their relationship to certain assets. A property right per se has no independent existence. Thus, for example, the sentence: “‘A’ is the owner” is meaningless as long as there is no mention of the object of which A is the owner (“‘A’ is the owner of the house”). This also applies to lease, pledges and other property rights — without assets to which the rights relate, the rights do not exist. Things which are the objects of property rights are the various “assets”, and a person's aggregate assets constitute his “wealth”.

Medical recourse to organ transplants and the transfer of other material from the body of one person to that of another has increased steadily over the past few decades. This raises new legal questions, and brings once-thought purely academic questions to the forefront.

Organs and other material used for transplants can either be taken from a living person (for example, bone marrow, sperm, or blood); or from a corpse, as is the case with most transplants. Certain material, in particular kidneys, can be taken from both. In Israeli law, this duality in the sources of supply is paralleled by different sources of regulation. With respect to a corpse, the Anatomy and Pathology Law attempts to solve the main problems from a practical point of view. On the other hand, the Israeli legislator has as yet to intervene with respect to the living body.