Law reform is now under consideration in most countries of the world and practically everywhere, the problem of the instruments of this reform arises: should the reform be carried out by the decisions of judges or by statute, and if by statute, must such law be codified?

Common law countries are both attracted and at the same time frightened by codification. This may well be the situation here in Israel, where the common law tradition is still deeply rooted but where there is also a certain tradition in favour of codification.

At any rate, the subject cannot be treated today as it would have been a century ago. The old controversies about the usefulness of codification in the abstract are out of fashion. In England, the fierce attacks of Jeremy Bentham against the common law—“dog law”—have had no influence on the development of English law. On the continent, Savigny and the German Historical School did not prevent the progressive codification of German law nor the adoption in the other countries throughout the nineteenth century of codes inspired by the French model.

Like the ancient geographical area, American administrative law is also divided into three parts. In the American, as in the British conception, administrative law is concerned with powers and remedies and answers the following questions: (1) What powers may be vested in administrative agencies? (2) What are the limits of those powers? (3) What are the ways in which agencies are kept within those limits?

In answering these questions American administrative law deals with the delegation of powers to administrative agencies; the manner in which those powers must be exercised (emphasizing almost exclusively the procedural requirements imposed on agencies); and judicial review of administrative action. These form the three basic divisions of American administrative law: (1) delegation of powers, (2) administrative procedure, and (3) judicial review. This article will seek to present a synoptic survey of these three subjects. Its aim is to present an overview of American administrative law to the Israeli jurist, enabling him to understand the essentials of a system that is, at the same time, so similar to and so different from his own.

I was not surprised when, from several alternative subjects, you chose, as the title of my Lecture, the need for a Constitution in Britain. Those of us without a written constitution are indeed, a select club—New Zealand, Israel, the United Kingdom.

I will start with a quotation from Lord Salmon. In a recent lecture, he said:

One can recognize in this passage the views of an eminent common lawyer, believing in the strength and potentialities of the common law as a flexible instrument, in, of course, the right hands: of one who believes deeply in human freedom, and who is concerned about the threat to it: who desires an explicit definition of the basic liberties and who believes that these can be protected by a sufficiently strong, entrenched, legal system. In this he undoubtedly reflects the views of many people, probably of the majority of ordinary men.

It is natural for the Israeli legislature to endeavour to free itself of the Laws that were enacted in this country before the establishment of the State and which are still in force. The legislature cannot, however, fulfil this task without first resolving whether the abrogation of these Laws should be effected by simple annulment or by replacement with other laws (and in that event within which framework). The problem is laden with responsibility when fundamentals — such as certain rules incorporated in the Palestine Order-in-Council, the “remnants of the Mejelle” and the Interpretation Ordinance — are involved which affect the entire legal system and give it its special character. Moreover, the one problem leads to another: incidental to annulment and replacement, the need for complete regulation may present itself, including aspects not previously regulated in a direct, express and sure manner.

Rules which belong to a category that can be designated as the “Law of Laws” (“Laws” taken in the sense of all law and not merely statute) are in question. As opposed to others (which are “material” since they attach legal consequences to given facts of life), these rules concern the sources, the effect, the application and the construction of other laws.

This article is a section of a doctoral thesis recently presented on “The Juridical Nature of the Bank-Depositor Relationship”. Its object was to determine the legal nature of general deposits of money in a bank account.

After discussing the various explanations in the context of some of the main Civil law systems (those of France, Italy, Spain and Portugal) the Common Law systems (England, U.S.A.) and under Israeli law, the author reached the conclusion that a bank deposit is not a deposit stricto sensu, being neither an irregular deposit nor a loan, nor even a combination of both, but rather a contract sui generis. In his opinion, the depositor, having placed his money in the bank still retains ownership of the fund: the bank acquires possession and may dispose of the customer's money, thus showing part ownership. In other words, a deposit in a bank implies a contractual fragmentation of the depositor's ownership between the customer and the bank. As a result thereof both parties maintain converging real rights in the fund, thus giving rise to a peculiar real relationship.

I am grateful to be here as a Lady Davis Visiting Professor on my fourth trip to Israel. I feel very much at home because of the warmth and hospitality of my colleagues and friends. Moreover, the University of Pennsylvania has an Israel-Penn exchange programme which we hope to expand, and I know that the new dean of our law school, Dean Freedman, will have more conversations with Dean Klein. Thank you for having me and for affording me new opportunities to augment my experiences in Israel.

I hope to help promote the role of criminology here at Hebrew University, especially the relationship between research in behavioural science and the law as well as social policy. I have just returned from a one-week trip to the States under the auspices of the National Academy of Sciences to discuss a new report of a Panel on Rehabilitation, which represents some of this admixture of science, ethics and law to which I refer.

I wish to share with you some thoughts about Western society's changing penal philosophy, with particular emphasis on the shift from rehabilitation to retribution. Some of what I discuss is rooted in empirical science; some is my personal perspective. There should be little difficulty discerning the differences. For many years of my professional life I adhered to William Graham Summer's dictum—Yale University's early 20th century sociologist—that the purpose of sociology is to describe, not prescribe.

The manner in which rights should be classified and the various classes defined have been discussed the world over for many generations. This fundamental problem of conceptual jurisprudence has challenged the acumen of many scholars; but to avail. Yet it is vital to find a suitable test of distinction not only for the sake of theoretical thinking but also for the needs of daily practice. Thus, how shall we decide to what extent we are legally bound to respect another person's right? How does such a right arise? How is it transferred? When does it expire? And how shall we know what law is applicable in all these matters? Is it the law of property or the law of obligation? Is it the law governing the place where some piece of property is situated or the law under which the right was created? To answer these questions it will often be necessary to find out in what category the right considered belongs.

The Druzes have never been recognised as a religious community under Muslim rule. During the Ottoman period such recognition was only granted to the members of the tolerated religions — Christians and Jews — within the institutionalised framework of the millet system. The Druze religion, though originating from the Ismā'īliyya, an extreme branch of the Shī'a, seceded completely from Islam and has, therefore, experienced periods of persecution by the latter. The Druzes were theoretically amenable to the sharī'a courts in matters of personal status and succession, yet not as Muslims (as is usually assumed owing to the custom of taqiyya, simulation, prevailing among them) but as persons not belonging to a recognised religion. At the same time, they seem in practice to have enjoyed a certain autonomy in these matters under their own religious and customary law. There is documentary evidence of this for the Lebanese Druzes, of the late 19th and early 20th century, but this autonomy should not be construed as the status of a recognised religious community.

All attempts of the Druzes to achieve such a status in the era of British rule in Palestine were unsuccessful. They were not included in the list of recognised communities in the Palestine Order-in-Council, 1922–1947, nor the Succession Ordinance, 1923, probably due to a desire of the British Mandate to maintain the status quo in religious matters with only such modifications as the new political situation required. At the same time, the Government recognised Druze autonomy in matters of marriage, while other matters of personal status, and those of succession, were referred to district courts, since the Order-in-Council restricted the personal jurisdiction of the sharī'a courts to Muslim litigants.

It has been widely remarked, in both the popular press and the scholarly literature, that rapid technological advances in the biomedical sciences may have outpaced society's ability to consider and cope with all their implications. In short, that technology is out of control. A particularly poignant example of the quandaries wrought by modern technology has been the plight of Karen Quinlan and her family. Pronounced by her doctors to be in a “persistent vegetative state”, with permanent loss of all cognitive function, Karen was seemingly sustained only by her connection to a mechanical respirator. Following a lengthy vigil and with the blessing of their church, the Quinlan family requested that the respirator be disconnected. The doctors refused, stating that such an action would be contrary to accepted medical practice. The Quinlans responded with a legal action for declaratory and other relief, the practical effect of which would be the termination of use of the respirator. After failing in the lower court, In the Matter of Karen Quinlan, 137 N.J. Super. 227, 348 A.2d 801 (1975), the Quinlans were successful in the New Jersey Supreme Court, 70 N.J. 10, 355 A.2d 651 (1976). Shortly thereafter, the Quinlans directed that the respirator be removed; much to their surprise (and undoubtedly that of the Court), Karen proved able to breathe unassisted. With antibiotic treatment and intravenous feeding, but without the respirator, Karen has survived since June of 1976 in a New Jersey nursing home. There is no indication that she has regained cognitive function.

While widely perceived as concerning “the right to die with dignity”, the Quinlan situation in fact raises a great many issues central to the interaction of law, morals, and modern technology and provides a convenient focus for discussion of these issues.

In recent years there has been a constant increase in the number and significance of administrative contracts, that is, contracts to which the public administration is a party. Contracts between private individuals and government are a daily occurrence. Such contracts are essential to the performance of the executive's various actions and functions, and apart from their practical importance, they raise theoretical questions.

From a philosophical point of view, an administrative contract can be considered as a contract in which a person is party to a contract with himself, since the State embodies the entire community of its citizens.

The subject of administrative contracts has so far not received sufficient legal-academic attention. Discussion of this issue becomes more and more essential with the rapid increase of administrative contracts regulating complex transactions.

Another spreading phenomenon which is closely linked to administrative contracts is administrative promises (when such promises do not crystalize into administrative contracts).

The first problem arising in connection with administrative contracts and promises is the question of the substantive law to be applied. The problem of the substantive law gives rise to secondary problems as to legal remedies and jurisdiction.

It appears that administrative contracts are to be governed by one of three systems of rules: contract law, administrative law or a system which combines elements of the two systems.

However, no solution is clear-cut. The applcation of the law of contract causes a confrontation between the fundamental principles of the law of contract, mainly the principles of freedom of contract and sanctity of contract, and the needs of the administration, the powers of the sovereign and its duties.

Israel's Civil Wrongs Ordinance, and the statutory immunity provided in it from liability in torts for strike action, was enacted at a time when the strike was regarded simpliciter as a “sacred tradition” and when no distinction had yet been drawn by statute or the courts between legitimate and illegitimate strikes. Since that time there has been an evolution of restrictions on the liberty to strike both in statutory provisions and in judicial doctrine.

In the public services, by statutory provision, all strikes which are not authorised by the statutorily designated trade union and nearly all strikes during the duration of a collective agreement are now considered to be “unprotected strikes”. Unprotected strikes are divested of the statutory immunities generally bestowed upon strikers or strike organisers for breach of their employment contract or for causing breach of contract; however, under the statutory provisions only the primary employer may sue. By judicial doctrine, formulated in the National Labour Court, strikes which are held for the purpose of enforcing legal rights rather than for the fixing of economic rights are not a legitimate exercise of the liberty to strike.

Neoclassical economic theory views man in his economic activities as a monetary maximizer. Efficient pursuit of economic gain requires an economic unit to evaluate his market alternatives by balancing anticipated marginal gains against anticipated marginal losses. Relevant for the initiating agent in this calculation is the amount of benefits he can anticipate to capture against the costs society's legal system force him to take into account. Benefits and costs generated by his actions to other parties, but not falling within this calculus, called external benefits and external costs, are assumed to play no motivational role in his market conduct. To the extent that society's legal system fails to provide adequate incentives to allow the initiating agent to be compensated for the full extent of the benefits his actions generate and fails to charge economic actors for the full extent of the detriment their actions impose on others, a misallocation of economic resources will occur. From a social standpoint, too much will be produced by enterprises involving external costs, while less than the optimal amount will be produced by industries involving external benefits.

The purpose of this essay is to give an aperçu of the varying approaches for the disposition of child custody cases developed by American law during the past thirty years and the Rabbinical Courts of Israel (hereinafter referred to as the Beth Din), a contemporary repository of the sources of Jewish law. The study that follows is not to be read as “a history of child custody” in the sense of tracing this legal topic as it might have developed over the course of time.

Though there will be occasion to allude to the relevant principles of American law and principles of Jewish law, it is the jurisprudential perspective rather than the substantive content which is the primary theme.

I. A parent's relationship to his child may be viewed as a status carrying with it certain responsibilities and duties owed to the child with reference to care, education, and support. When a family breaks up through death, divorce, separation, child neglect or abandonment, the individual who performs most of the parental functions, who lives and cares for the child is said to have custody of the child, even though someone else may exercise some other parental rights and obligations.

In determining a custody dispute between natural parents and proceedings involving a natural parent and a third party, American courts have frequently based their decisions on two doctrines.

Insurance policies are interpreted, as a rule, in favour of the insured. Several rationales have been used to justify the practice. One recurring explanation centres around the poor readability level of insurance contracts. The following judicial comment, though more colourful than most, is typical:

In the suspended sentence, or as it is sometimes called, the conditional sentence, the defendant does not serve a sentence upon conviction. Service of sentence is postponed for a period of time. Whether the defendant actually will serve any sentence depends upon whether he abides by the conditions of postponement or suspension. Typically, the condition is that he shall refrain from committing additional crimes, sometimes without limitation, sometimes of a specified class.

There exists in the literature considerable debate over the value of the suspended sentence as a penal device, with the harshest criticsm coming from the Anglo-Saxon countries which share a strong preference for probation. Israel stands somewhere between these poles. While the legal tradition bequeathed her upon emerging into independence was Anglo-Saxon, she has, ever since, sought wisdom in other traditions as well, with the result that Israeli legislation has on occasion produced interesting and unique devices. The suspended sentence is, in my view, a case in point, worthy of being made known to a wider audience.

Historians have often directed their attention towards Judaea when delving into the legal organization of the Roman provinces and in particular into the policy which Rome adopted towards them.

The works of Flavius Josephus, the only ones which have come to us from amongst the many other contemporary works of varying political outlook, were for a long time the historians' chief source.

Jurists, on the other hand, have not really exploited this source despite its great importance. Indeed, for many of them the numerous doubts raised as to the authenticity of the official documentation present a serious obstacle, although it is this very characteristic that could be of the greatest help in making an historical reconstruction which would also be valid at the legal level.

Now however, the recent discoveries in the Dead Sea have brought to light new material of undoubted authenticity. This material sheds light on what was one of the most troubled Roman provinces for both the historian and the jurists.