bluuebunny/crossref_metadata_2025 huggingface dataset:
The International Committee of the Red Widget? The Diversity Debate and International Humanitarian Law
Authors: Provost René
Published: February 2016

This article asserts there has been a lack of attention to the impact of cultural diversity within the field of international humanitarian law. Discussions surrounding culture in international humanitarian law have nearly always avoided the central issue of cultural particularism. This has been so in relation to the debate surrounding the emblem, in general surveys of humanitarian law, and in discussions of the laws of war in distinct legal and cultural traditions. The emblems debate, in particular, signals the elusiveness of rigid universality within international humanitarian law. Five elements are suggested to explain the resistance of humanitarian law to contagion by the cultural relativism debate in human rights: the nature of human rights, the distinct normative frameworks of human rights and humanitarian law, the unified conventional basis of humanitarian law, the very broad participation in the humanitarian regime, and the unique role of the International Committee of the Red Cross. While these reasons might explain the fact that the relativism debate in human rights did not readily transfer to humanitarian law, they offer no substantive basis for immunity for humanitarian law to the challenges posed by cultural diversity. Ultimately, the article proposes a legal pluralist approach that recognizes the role of actors in the cultural process of norm-creation. Given the continued violation of the laws of war, the author suggests a need to open the door to cultural diversity in order to generate greater compliance. Without cultural legitimacy, there is a danger that humanitarian law aspires to self-defeating universalism.
Double Effect and Double Intention: A Collectivist Perspective
Authors: Zohar Noam J.
Published: February 2016

I find myself in agreement with much of Jeff McMahan's analysis. Yet I have argued in the past (initially against Judith Jarvis Thomson, but also against McMahan) that it is insufficient, and misleading, to think about warfare and its moral assessment in merely individualistic terms. My disagreements with McMahan's discussion here are mostly linked to the same fundamental reservation.

McMahan describes a clear-cut dichotomy between the individualist perspective— which he endorses—and collectivist approaches. These he characterizes as recognizing (in warfare) only collective moral agency, precluding individual responsibility. But in my view, we should reject this very dichotomy and adopt instead a dual moral perspective. Our focus should not be exclusively on individual choice, action, and responsibility: This should be combined with a collective perspective. In my comments here I will illustrate this by examining McMahan's discussion of terrorism and intention. I hope thereby to show that the description of warfare as a set of individual acts must be supplemented by its description as a conflict between collectives—between nations acting through their respective armies.
The Decline, but not Demise, of Multiculturalism
Authors: Rubinstein Amnon
Published: February 2016

This article discusses the decline of the multicultural doctrine that has governed Western political philosophy and practice in the last part of the 20thcentury. This decline is felt in the USA as well as in EU countries and manifests itself in new cultural restrictions on immigration policy, in stricter loyalty tests for immigrants who seek naturalization and in statutes regulating behavior in public places (such as the anti-veil acts in Europe) and proscribing deviant acts based on religious tradition (such as the American law criminalizing female genital circumcision). This decline is also accompanied by rethinking the theoretical foundations of the multicultural approach. This rethinking was accelerated by the onset of the Islamist—as distinct from Moslem—crisis, but started before the 9/11 events.

The article surveys the state of multiculturalism in a number of Western countries and pays special attention to the cases of the USA, Britain, France, and the Netherlands. The case of Israel is discussed separately because of its unique features as a society plagued by a national conflict. In all these countries the principal issue is how to tolerate intolerant communities, how to treat religious communities whose tenets clash with the democratic and liberal values of the host country and how to balance the rights of the individual against the rights of the cultural group to which that individual belongs.

The author challenges the notion that all cultures are entitled to equal treatment and excludes from this ambit cultures that clash with the values of democracy and human rights. The author denies the notion that consent of the sufferer validates such cultural practices and demonstrates this by referring to the former Hindu practice of Seti—burning a widow alive, with her consent. Such consent is irrevocable and is always subject that it was given under social and cultural duress.

The main brunt of this article is that the norms of democracy, equality, and human rights are not a culture in the ordinary sense of the word, as they are distinct from all traditional cultures and are the result of an intellectual construct founded upon the autonomy of the individual and on a rejection of traditional culture. This is the reason why these liberal norms should supersede any custom, even when based on cultural tradition, when there is a clash between the two. When there is no such clash, a compromise solution ought to be reached resorting to traditional judicial means of balancing contradictory values.
Judas
Authors: Daube David
Published: February 2016

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.
The Status of the Handmaiden Tamet: A New Interpretation of Kraeling 2 (TADB3.3)
Authors: Porten Bezalel , Szubin Henri Zvi
Published: February 2016

Among the best known Aramaic documents from Elephantine are the so-called “marriage contracts” (TADB2.6; 3.3,3.8; 6.1–4). Three of these are intact (TADB2.6; 3.3), or virtually so (TADB3.8), and are written by the scribe Nathan b. Ananiah (TADB2.6; 3.3) and his son Mauziah (TADB3.8) respectively. Mauziah wrote one of the fragmentary documents (TADB6.4) and, on the basis of the handwriting, probably another one as well (TADB6.1). Both are professional scribes with several other documents to their credit: Nathan —TADB2.7; 3.1; Mauziah —TADB2.9–10; 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.
Zedaqà: Pursuit of Justice and the Instrument of ‘Ius Talionis’
Authors: Piattelli Daniela
Published: February 2016

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.
Rutilia's Lake
Authors: Mayer-Maly Theo
Published: February 2016

The Lago di Bracciano is a lake in Southern Etruria with a surface of 57.5 square kilometers. Its maximum length is 9.3 kilometers. The width goes up to 8.7 kilometers. The extent of the lake is 31.5 kilometers. Its water originates in part from some small rivers, and in part from underground springs. The lake is situated in a volcanic area, a fact which is important in our case.

The Romans called the Lago di Braccianolacus Sabatinus. We find the lake referred to by this name on the tabula Peutingeriana. Collumella mentions the lake in his workDe re rusticain the chapter on pisciculture. He points out that due to farmers' care some lakes have sea-fish, which can stand fresh water:

Inde Velinus, inde etiam Sabatinus, item Volsiniensis et Ciminius lupos auratasque procreaverunt, ac si qua sunt alia piscium genera dulcis undae tolerantia.
Israel and the United Nations' Human Rights Agenda: The Inequality of Nations Large and Small
Authors: Bayefsky Anne F.
Published: February 2016

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.
Complicity
Authors: Fletcher George P.
Published: February 2016

Thank you, Albin Eser. I was very pleased to note in the Program that I am listed as a member of the Israeli delegation. This is an honor, but I would also would like to think that I am treated as an honorary member of the Max Planck delegation. I first studied the theory of criminal law at the Max Planck Institute in Freiburg and my work there has had a lasting influence on my thought.

My subject is complicity, which in general terms refers to the liability of one person for the act of another. I begin with an example to render clear the different approaches to this problem of derivative liability. The perpetrator Paul plans the robbery of a gas station and he offers part of the expected bounty to Alex for driving him to and from the scene of the crime. Carrying out this task, Alex knows of the criminal purpose and therefore it seems clear that in some way he should be held criminally liable. The problem is identifying the form of his liability.
Obedience to Superior Order and Corporal Punishment as an Educational Method
Authors: Amelung Knut
Published: February 2016

My lecture deals with three loosely connected topics, which are treated together in German textbooks.

1. Acts authorized by law as mentioned in article 49, section 1, of the draft.

2. Acts on the order of an authority, as mentioned in article 49, section 2, of the draft.

3. Acts for the purposes of education, as mentioned in article 49, section 5, of the draft.

Initially, a German scholar would be tempted to view the provision in article 49, section 1, as redundant. From a German point of view, it is evident that someone, who is authorized by law to act in a certain way, does not do so unlawfully. One of the first principles German students learn in their criminal law lectures, is that every act permitted by statute is in effect the justification of what is by definition a criminal offence. This is derived from a principle, which we call “unity of law”. This means that there may not be any contradictions in the law, and that an act permitted by it cannot also be forbidden by criminal code.
Mistake of Law
Authors: Neumann Ulfrid
Published: February 2016

The relevant section of the Israeli draft concerning “Mistake of Law” reads as follows:

For the purposes of criminal liability, it is immaterial whether a person, owing to a mistake as to the existence or meaning of a penal enactment, imagines that his act is not prohibited, unless the mistake could not reasonably have been avoided.

The corresponding section of the German Criminal Code (StGB) concerning mistake of law (§ 17) reads as follows:

If the perpetrator, when committing the act, lacks the insight into his wrong-doing, he is not criminally liable if this mistake was unavoidable. In case, this mistake was avoidable, the punishment can be mitigated according to § 49, sec. 1.
Sanctioning Policy in Israel — An Historical Overview
Authors: Sebba Leslie
Published: February 2016

The sanctioning policy of a given society may be analysed on a number of levels. It may focus on the actions of the legislative body in the adoption of statutes, or on the legislative and administrative measures taken by the ministers and policy-makers who derive their formal powers from such statutes. Alternatively it may focus on the decisions of the courts, either by examining these on a statistical level or by analysing the content (the rhetoric as well as the substance) of their decisions. The present article will focus primarily upon the legislative policies of the Knesset in the matter of sanctions since the establishment of the state.

Before beginning the analysis of legislative policy in this area, two preliminary observations may be made regarding the informal constraints influencing the formulation of legislative policy in relation to the penal system during the formative years of the state.
Rectitude Rights and Legitimacy: Reassessing and Reforming the Privilege against Self-Incrimination in English Law
Authors: Dennis Ian H.
Published: February 2016

The privilege against self-incrimination has always attracted controversy. Legal historians continue to disagree over its origins, and its justification has been keenly debated ever since Bentham's famous attack on it as a misguided concession to the guilty. This debate has recently entered a new and critical phase as the result of diametrically opposed developments by, on the one hand, the courts and legislature in England and, on the other, by the institutions of the European Convention of Human Rights. These developments can be summarised by saying that whereas the trend in England has been towards attrition and formal restriction of the privilege, the European Court of Human Rights has been reconstituting the privilege as an implicit element of the right to a fair trial under article 6.1 of the European Convention. The European decisions have the potential for significant expansion of the privilege, and they call into question the validity of several of the English developments.
Legal Complexity and the Transformation of the Criminal Process: The Origins of Plea Bargaining
Authors: Feeley Malcolm M.
Published: February 2016

The standard form of disposition for most English and American criminal cases is the guilty plea, by means of a plea bargain. Jury trials are the rare exception rather than the rule. Although plea bargaining is the subject of a huge scholarly literature analyzing its nature and functioning, there is a much smaller literature on its origins and development. Most of the literature is highly critical, and much of it rests upon a belief that bureaucratic justice has come to replace the vigorous adversarial jury trial. Some critics lament “our vanishing jury”. Others decry the rise of “technocratic justice”. And still others warn that we are witnessing the “twilight of the adversary process”, or the decline of the adversary system. Even those who defend plea bargaining, such as justices on the United States Supreme Court, tend to regard it as a “necessary evil” required as an expedient to cope with the rising tide of caseloads rather than an ideal process.

Despite important differences of emphasis among these and still other commentators, most share an important commonalty; they adopt a form of functional analysis that understands plea bargaining as an adaptation to caseload pressures. Hence the power of the metaphor “the twilight” of the adversary process. This assessment seems plausible in light of pervasive plea bargaining and the crush of caseloads in American and English courts.
Plea-Bargaining in Israel — The Proper Functions of the Prosecution and the Court and the Role of the Victim
Authors: Harnon Eliahu
Published: February 2016

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?
Improving the Position of the Victim in English Criminal Procedure
Authors: Spencer John R.
Published: February 2016

In this paper I shall try to do two things: first, for those who do not have a detailed knowledge of criminal procedure in England, I shall give a bird's-eye view of what the victim's legal position is today. Secondly, I shall examine the difficulties, theoretical and practical, which make it hard to give the victim the deal which many of those who claim to speak for victims believe they ought to have.

In the last twenty years the victim, for long the “forgotten man” in the criminal justice system, has been rediscovered. Politicians of all parties have learnt that victims, and those who identify with them, have votes, and therefore need to be placated. Up to now, however, this has mainly been done by words rather than deeds.

An example is the document rather grandly entitled “The Victim's Charter”, which the Government issued in 1990 (with a revised version in 1996). Contrary to what the title “Charter” might lead one to suppose, this document confers no rights or privileges, but merely lists the ways in which the various parts of the machinery of criminal justice ‘ought’ to be sensitive to the position of the victim.
Protection of Victims in Rape and Sexual Abuse Cases in the Netherlands
Authors: Nijboer J.F.
Published: February 2016

In general, the Dutch codification of Criminal law is constructed on the basic divisions that can be found in most Civil Law jurisdictions. The substantive law and the procedure are regulated in two separate Codes: the Penal Code (Wetboek van Strafrecht) and the Code of Criminal Procedure (Wetboek van Strafvordering). The present Penal Code came into force in 1886; the present Code of Criminal Procedure in 1926. Both Codes have been reformed often, but their basic features have been preserved.

The Code of Criminal Procedure regulates the due course of the procedure as a chronological sequence of investigations and decisions. A trial before a District Court (arrondissementsrechtbank), which sits as a chamber of three judges (meervoudige kamer), serves as a model for the manner in which trials must proceed. Most of its provisions are also applicable to trials before other Courts, such as those before the Court of Limited Jurisdiction (kantongerecht); the District Court with a single judge sitting alone in simple cases; the District Court, which handles appeals from the Court of Limited Jurisdiction; and the Court of Appeal, which handles appeals from the District Court.
After the DNA Wars: A Mopping up Operation
Authors: Lempert Richard
Published: February 2016

The “DNA Wars” we are told are over. Two of the key, and at times most effective, participants in the battle, the FBI's Bruce Budowle and the leading early scientific skeptic, Eric Landers, have declared their own private truce and suggested that all are included. The controversial report of the first National Research Council Committee on DNA Evidence has in crucial respects been replaced by a second National Research Council Committee Report on DNA Evidence that has debuted to far better reviews than its predecessor and is likely to erase the earlier report's influence as courts grapple with DNA evidence. Yet all is not quite as peaceful as it appears; DNA2, despite its virtues does not adequately resolve all questions about the significance of DNA evidence, and some veterans of the DNA wars are not yet content to lay down their arms. We can better understand why the Landers-Budowle truce and DNA2 may not resolve all conflict if we first understand why disputes over the population genetics and statistical issues raised by the forensic use of DNA identification evidence became so heated that people came to speak of the “DNA Wars”.
The Samaritans in Justinian's Corpus Iuris Civilis
Authors: Rabello Alfredo Mordechai
Published: February 2016

Justinian, in hisCorpus Iuris Civilis, showed great interest in the Samaritans, in the context of his lifelong effort to make Orthodox Christianity the prevailing faith of the Roman empire. In general, Justinian's relationship to non-Catholic religions was one of discrimination and degradation. The Samaritans were subjected to especially harsh treatment and repressive legislation, due to their sanguinary rebellions. This cycle of repression and rebellion had dire economic consequences in Palestine for the entire general population, including Christians, and contributed to the general population's dissatisfaction with Imperial policy.

In the Theodosian Code, the first official collection of Imperial constitutions, Samaritan-related legislation was grouped together with legislation related to Jews and Caelicolae, in the general context of the relationship between the Empire and the Church.
Nazi Criticism Against the Normativist Theory of Hans Kelsen: Its Intellectual Basis and Post-Modern Tendencies
Authors: Englard Izhak
Published: February 2016

In the 1939 edition of Meyers Lexikon the following item appears:

Kelsen, Hans, Staatsrechtlehrer, Jude, * 11.10.1881 Prag, 1919 Prof. in Wien, 1930 in Köln, 1933 in Genf, seit 1936 in Prag, schrieb u. a. ≫Allg. Rechtslehre≪ 1925, ≫Théorie générale du droit international≪ 1932, ≫The legal process and international order≪ 1934; radikaler Vertreter der ≫Reinen Rechtslehre≪, die typischer Ausdruck jüdisch zersetzenden Geistes in der Nachkriegszeit auf dem Gebiete der Rechts- und Staatslehre ist. In der völligen Entleerung seiner allg. Formalbegriffe von jedem Wirklichkeitsgehalt leugnet K. jede Substanz des Rechts und Staats. Seine gemeinschaftszerstörenden Auffassungen stehen als polit. Nihilismus im schärfsten Gegensatz zur nat.-soz. Anschauung. Heute noch in der rechtsphilos. Logistik nachwirkend.
A Brief History of the New Constitutionalism, or “How We Changed Everything So That Everything Would Remain the Same”
Authors: Mandel Michael
Published: February 2016

The Italians have a word for what I want to say about modern constitutionalism: “gattopardesco,” that is “leopardesque”, not as in the animal but as in the novelThe Leopardby Tomasi di Lampedusa. The novel is about a noble Sicilian family at the time of the unification of Italy in the mid-nineteenth century. Italian unification was mainly a matter of the northern Savoy monarchy of Piemonte conquering the peninsula and vanquishing the various other monarchs, princes, etc., including the Bourbon rulers of Sicily and Naples. But there were other elements about and stirring up trouble, anti-monarchist and even socialist elements. In a scene early in the novel, the Sicilian Prince of Salina, the main character, is shocked to learn that his favourite nephew, Tancredi Falconeri, is off to join the invading northerners. He remonstrates with the boy:

You're crazy, my son. To go and put yourself with those people … a Falconeri must be with us, for the King.
Blind in the Right Eye: Weimar as a Test Case
Authors: Zimmermann Moshe
Published: February 2016

The most frightening debacle of democracy is not caused by a revolution or a coup d'etat but by the creeping process of delegitimization, in which the Giant's leap (“Quantensprung”) is hardly conceivable. The most notorious example to date is the Weimar Republic, as the German Reich was called between 1918/9–1933. This example has served as a constant warning for all democratic systems since then, and is therefore always present and relevant.

It is not for a social or cultural historian to intervene in a purely professional discussion of jurists or legal historians concerning the question of constitution, law and democracy. His aim is to concentrate on the complex relationship between the social and cultural contexts and the constitutional text and subtext.
The Practice and Case Law of Israel in Matters Related to International Law
Authors: Giladi Rotem M.
Published: February 2016

On February 24, 1998, the government submitted the International Treaties (Approval by the Knesset) Bill, 1998 to the Knesset. This governmental bill represents the culmination of fifty years of exchange between the Executive and the Legislature concerning the constitutional authority to conclude international agreements on behalf of the State of Israel.

Normally, it would have been preferable to await the completion of the enactment process before commenting on the new legislative arrangements. Due to the constitutional importance of the Bill and the fact that it raises several important questions, the regular practice will be abandoned in this case.

Despite the availability of an abundance of materials on the treatymaking practice of the State of Israel and the status of treaties under municipal Israeli law both in English and in Hebrew, an in-depth analysis of the Bill requires an extensive expositionde lex lataon both these questions. Only then will the provisions of the Bill be presented. This will take the form of an issue-by-issue analysis, with conclusions drawn in each segment. The review will conclude with several additional observationsde lege ferenda.
Constitutional Theory as a Problem of Constitutional Law: On the Constitutional Court's Total Revision of Austrian Constitutional Law
Authors: Somek Alexander
Published: February 2016

La.I clear it thus out ofSir Edw. Coke 1 Inst. Sect. 138. that this [Legal Reason] is to be understood of an artificial perfection of Reason gotten by long Study, Observation and Experience, and not of every Mans natural Reason; forNemo nascitur Artifex. This Legal Reason is summa Ratio; and therefore if all the Reason that is to be dispersed into so many several heads were united into one, yet could he not make such a Law as the Law of England is, because by so many successions of Ages it hath been fined and refined by an infinite number of Grave and Learned Men.

Ph.[…] I grant you that the knowledge of the Law is an Art, but not that any Art of one Man, or of many how wise soever they be, or the work of one and more Artificers, how perfect soever it be, is Law. It is not Wisdom, but Authority that makes a Law. […] That the Law hath been fined by Grave and Learned Men, meaning the Professors of the Law is manifestly untrue, for all the Laws of England have been made by the Kings of England, consulting with the Nobility and Commons in Parliament, of which not one of twenty was a Learned Lawyer.
Sentencing Reform in Israel: The Goldberg Committee Report
Authors: Ohana Daniel
Published: February 2016

Sentencing reform has been the subject of much debate over the past two decades in North America, Europe and Australia. Among the concerns spurring this widespread reconsideration of sentencing principles and practices, there is the need to promote consistency in sentencing, the crisis in public confidence in the criminal justice system, and the constitutional argument for more legislative intervention in the area of sentencing. The reforms implemented in various jurisdictions to address these concerns have taken numerous forms: at the federal level in the United States, “base sentences” were assigned to each offense category, the final sentence being fixed in the light of the offender's prior criminal history and aggravating and mitigating circumstances; at the state level, several jurisdictions adopted a less detailed system of numerical guidelines, schematized by a two-dimensional grid of sentence ranges defined by classes of offenses and the offender's criminal record. Other jurisdictions, such as Canada, Britain and Sweden, eschewed the use of numerical guidelines as a vehicle to structure judicial discretion in favour of simpler statutory statements of principles in sentencing.
Leading Decisions of the Supreme Court of Israel and Extracts of the Judgment
Authors: Gallant Linda , Fassberg Celia Wasserstein
Published: February 2016

Nafisi v. Nafisi (1996) 50(iii) P.D. 573

The parties were married in 1944 in Persia (Iran), where they were domiciled. In 1979 the husband visited Israel, and during his stay he bought a shop in Tel-Aviv, which he registered in his name. In 1983 the couple and their five children immigrated to Israel. They lived in an apartment registered in both their names. Shortly after their arrival in the country, the husband opened two bank accounts in his name and deposited amounts totalling $320,000, which he had brought with him from Persia. In 1987 the couple's marriage broke down. Despite the rift, they both continued to live in the family home. The wife petitioned the court for a declaratory judgment stating that the shop and the money deposited in the bank accounts were jointly owned by both spouses. The District Court ruled in her favour. The Supreme Court accepted the husband's appeal and held that the wife had failed to prove her right to community property. The wife requested a further hearing in the Supreme Court on the matter, and in the further hearing, the Court ruled in her favour, by a majority decision.
Democracy and the New Constitutionalism in Israel
Authors: Mandel Michael
Published: February 2016

In a recent paper, I argue that the “new constitutionalism” — the transformation in the relations between courts and representative institutions that has swept the world and that is now sweeping Israel too — can best be understood as one of those “changes of everything so that everything would remain the same”. The promotion of courts and the demotion of legislatures through the judicial enforcement of “rigid” Charters and Bills of Rights has “legalized politics,” changing its nature as well as its locus. Contrary to those who regard this as an essentially democratic development, I argue that it is, to paraphrase Reuben Hasson, a weapon in the hands of democracy's enemies. I argue that the new constitutionalism was intended to operate and does operate as anantidoteto democracy, that it was meant to preserve the oligarchy of private property from the mortal danger posed by representative institutions elected by people without property, the original Greek “demos” from whence the term.
Exploring Limits on the Use of Administrative Agencies in the Felony Criminal Process
Authors: Abrams Norman
Published: February 2016

When we think of criminal proceedings, we ordinarily have in mind judicial process, that is a process in which decisions are made by a judge, and, typically in the United States, a jury. Over the course of the past century in the United States, however, certain decision-making aspects of felony criminal proceedings have been handed over to administrative agencies. Examples have been the involvement of administrative agencies in the determination of the sentence to be served in felony cases and the creation of the United States Sentencing Commission with authority to promulgate guidelines that limit the discretion of judges in determining the sentence. Nor are the examples limited to the latter stages of the criminal process. In some jurisdictions, prosecutors have behaved exactly like ordinary administrative agencies by promulgating internal policy in the manner of rulemaking.
The Effects of the Canadian Charter of Rights on Criminal Justice
Authors: Roach Kent
Published: February 2016

The Canadian Charter of Rights and Freedoms enacted in 1982 set off a “constitutional revolution” with profound effects on criminal justice. A criminal lawyer who left the country in 1982 would find that the law has changed dramatically in less than two decades. A system based on legislative supremacy and judicial reluctance to exclude evidence because of unfairness outside of the courtroom has evolved into one based on judicial review and the judicial application of standards of due process or adjudicative fairness at all stages of the criminal process. The law reports and reviews are now dominated by Charter jurisprudence whereas previously they focused on common law, statutes and legislative law reform. American notions of Miranda warnings, warrant and disclosure requirements and the exclusion of unconstitutionally obtained evidence have taken root in Canadian law. This paper will outline some of the major changes brought about by the Charter.
German Christian Contributions to Jewish Law
Authors: Cohn Haim H.
Published: February 2016

I have chosen for my subject some of the contributions made to Jewish law — in its widest sense — by German Christian scholars of the 16th, 17th and 18th centuries. Some sixty years or more ago I became acquainted with the writings of John Selden, the 17th century English lawyer, parliamentarian and antiquarian, whose books on the Uxor Hebraica and De successionibus ad legem Ebraeorum, and De synedriis, were a revelation to me: for a non-Jewish scholar of that period to be capable of delving into biblical, talmudical and post-talmudical sources and to compare them with other ancient systems of law, was an unexpected feat. It is not only the impeccable command of Hebrew and Aramaic that excites wonder: it is also a sincere and genuine endeavour to comprehend and describe the workings of Jewish law objectively and without religious bias. We shall see that not all theologians always succeeded in suppressing their innate prejudices; there were even a good many who conducted their Judaistic research for hostile purposes (and with those I shall not deal). Even of Selden it was said that he had voiced now and then some antisemitic remarks, but there is no trace of any personal animus in his books on Jewish law.
Sadducees and Pharisees: Two Controversies
Authors: Yaron Reuven
Published: February 2016

Our colleague, Professor Ze'ev Falk died on the eve of Rosh Hashana 5759, at the age of 75. His scholarly interests ranged widely; he was expert, inter alia, on the law of the interim period, between Bible and Talmud. Concerning later periods, his attention was given primarily to the law of marriage and divorce. He was a deeply religious man, yet free from any trace of complacency. When, as happens, he was unhappy with the way halakha went, he was wont to speak out and search for solutions. That the custodians of halakha would not tend to heed his suggestions, need not surprise. As a rule, they are reluctant to take notice of question-marks and solutions originating from without; and in their strict sense Falk was an outsider. But this was their problem rather than his.

This short paper is presented here in eius memoriam, as a token of friendship and respect. It would have been within the sphere of his interest.

May he rest in peace.
The Legal Status of Spanish Jews During the Visigothic Catholic Era: From Reccared (586) to Reccesswinth (672)
Authors: Rabello Alfredo Mordechai
Published: February 2016

This article is dedicated to the memory of my friend, Professor Ze'ev Falkteacher and researcher, who always displayed a great interest in the history of the Jewish People.

Foreword: The Jews had been living in Spain since the Roman period, when Spain became part of the Roman Empire. Much later, Spain was conquered by the Visigoths. King Alaric II (484–507) enacted a code based largely on the Theodosian Code (438), namely theBreviarium Alaricianum(506), of which many laws dealt with the Jews. During this period the Visigoths were Arian and their treatment of the Jews was relatively good. In this article I shall examine the way VisigothicCatholicSpain dealt with the Jews and Judaism.
Legalistic “Glosses” in Biblical Narratives
Authors: Westbrook Raymond
Published: February 2016

The genealogy of Israel in the book of Chronicles contains the following notice: (1 Ch. 2:34–35):

Sheshan had no sons, only daughters; but Sheshan had an Egyptian slave named Jarha. Sheshan gave his daughter to his slave Jarha as a wife and she bore him Attai.

Sheshan's purpose in marrying his daughter to his slave was to ensure that the offspring of the union would be regarded as his grandchildren. Moreover, as Japhet points out, the Chronicler has carefully crafted the details of the story, in particular the mention of a foreign slave, so that Sheshan's tactic will conform with the slave laws of the Torah. According to Ex. 21:2–6, the children would undoubtedly be the master's, since the master had given him his wife. Lev. 25:41, however, suggests that an Israelite slave might be able to take his children with him on leaving. The identity of the father as a foreign slave avoids any difficulty on this point: he cannot leave his master at all, and any children sired by him are unquestionably his master's.
Exodus 21:18–19 and the Origins of the Casuistic Form
Authors: Jackson Bernard S.
Published: February 2016

I first met Ze'ev Falk early in 1967, when I spent two months in Jerusalem in the course of my doctoral studies (with David Daube, in Oxford). His friendship and generosity to me during that period remain strong in my memory. Not only did 10 Harav Berlin become a home from home; from there he assisted me to meet others (not least, Nahum Rakover) who also became, in the years that followed, close colleagues and associates. His studies in Biblical legal terminology proved of great assistance to me, and hisHebrew Law in Biblical Timesremains a useful starting point for the study of biblical legal institutions. In many respects, his early concentration on biblical law provided the foundations for his later thinking, for which he was perhaps better known in Israel, on the values of Jewish law and the problems presented by Jewish family law in modern times. I offer my tribute in the form of a study of Exodus 21:18–19, a text which, apart from its particular problems and interest, has proved a focus for debate upon the general character of early biblical law, and in particular the casuistic provisions of the Mishpatim.
The “Penological Exception” to Extradition: On Ultimate Penalties, Human Rights and International Relations
Authors: Sheleff Leon
Published: February 2016

One of the most significant recent developments in the law of extradition is the serious consideration that courts are willing to display to the punitive consequences of an extradition order, if capital punishment is the specific penalty that the requested person is liable to have imposed on him if convicted. At the same time, this development serves also as one of the most dramatic examples of the manner in which the subject of human rights has become a factor in international relations, which nation-states can disregard only by exposing themselves to negative assessments linked to reluctance to respond to formal requests. For the most part the “linkage” has been focused mainly on economic aid, where donor countries would approve requested aid contingent on positive accounting in human rights, but now, as a result of a number of novel judicial decisions, it seems that similar factors will be examined, when requests for extradition are submitted. At the moment, the focus is on the use of the death penalty, but the very reasoning process used may well open up further possibilities.
Legally Protected Interests of the Abducted Alleged Offender
Authors: Lagodny Otto
Published: February 2016

Professor S. Z. Feller, to whom this article respectfully is dedicated, wrote a critical attack on the problem of concurrent criminal jurisdiction. The adverse consequence of more than one state claiming jurisdiction over a given criminal behaviour may be the abduction of the alleged offender by officials of one of these states. This issue was recently raised in the United States Supreme Court in theAlvarez-Machaincase. Chief Justice Rehnquist's holding allowing a U.S. court to try Dr. Alvarez-Machain, who was abducted by U.S. authorities, caused vehement national and international criticism. Subsequently, the United States District Court of Los Angeles acquitted Dr. Alvarez-Machain on 14 December 1992.

The long list of abduction cases of recent history, together with the absence of a satisfying solution are alarming. I shall not attempt to cut this “Gordan's knot”, but rather shall focus on an issue that has as yet not been clearly addressed in the current debate.
Development Agreements and Conditions in Building Permits — A Substitute for Formal Planning Processes?
Authors: Lewinsohn-Zamir Daphna
Published: February 2016

An increasingly common practice in Israel and other countries is the imposition of restrictions and burdens on land developers, without utilizing formal planning or expropriation processes. A land owner, for instance, may agree to dedicate part of his land for public use and to transfer its title to the planning authority, with no compensation and without expropriation procedures. Similarly, the parties can agree on height or bulk restrictions for buildings to be constructed on the land, beyond those imposed by the plans applicable to the area. The burdens might take the form of a contract between the planning authority and the developer, or may be included in the building or subdivision permits. In many cases, the authority attempts to use these tools to obtain benefits that it could not have acquired through its statutory powers. This article examines the legality of this practice and the restrictions which should be imposed on it. As regards the transfer of rights in land without compensation, the question arises whether such agreements or permits should be subjected to the same restrictions that apply to injuries caused by plans and expropriations. For instance, should one invalidate an agreement in which a developer purports to transfer land without compensation in quantities beyond that permitted by statutes authorizing expropriation without compensation? Does the fact that the land was transferred with the owner's consent (and not through the coercive power of expropriation statutes) restrict judicial intervention to contract law grounds, such as duress, misrepresentation or mistake?
The Influence of International Human Rights Law on the Israeli Legal System: Present and Future
Authors: Benvenisti Eyal
Published: February 2016

Since Israel's independence, the Supreme Court has been very active in establishing and securing an impressive edifice of human rights. Lacking a written constitution, the Court has based its constitutional jurisprudence on the democratic character of the state. It has developed an “Israeli made” bill of rights, relying on comparative studies, yet with little reference to the standards set in international human rights instruments.

Two legal events of the last three years may change the judicial attitude towards international human rights. The first major event was the Israeli government's ratification of important human rights conventions during 1991, first and foremost among them the 1966 Covenant on Civil and Political Rights, which has been named the “International Bill of Rights” (hereinafter: the 1966 Covenant).
Cyclical Market Power
Authors: Aviram Amitai
Published: February 2016

Market power is not ubiquitous; it is limited to certain products, in certain areas, and to certain times. Understanding the limits of the market power possessed by a firm in a given case is essential to the correct assessment of the firm's behavior and its antitrust implications.

The most common method used to identify the scope as well as the strength of a firm's market power is through the definition of relevant markets, calculation of market share and identification of relevant market conditions (e.g., barriers to entry). Correct assessment of suspected market power should relate to all the limits on that power. For that reason, when exploring the possibility that a certain firm possesses market power, a product market definition is of limited use without the support of the relevant geographic market definition.

This is also true of temporal restraints on market power. Some firms may be expected to possess market power (within certain product and geographical bounds) continuously, until a substantial and unexpected change in the industry diminishes their market power or changes its boundaries.
Right and Left: Ideological Disobedience in Israel
Authors: Gans Chaim
Published: February 2016

This article is primarily concerned with the issue of the justification for objection to service in the Occupied Territories and the claims made against such objection by those who share the objectors' opposition to the continuation of the Occupation, especially those who have, or at least purport to have, professional authority on the subject of disobedience. However, I will also discuss the question of the appropriate attitude towards such an objection from the perspective of the State and the courts, mainly because many people confuse the considerations that should inform the State's approach towards objectors with those that should guide the objectors themselves.

The arguments against disobedience are divisible between those purporting to demonstrate that there are absolutely no legitimate reasons for refusal, and those purporting to show that despite the existence of reasons for refusal, such acts should not be committed since the reasons militating against them are even stronger. Two main arguments are invoked in rejecting the legitimacy of disobedience. First, it is claimed that such disobedience cannot be justified by a universal and ideologically-neutral principle. Secondly, it is argued that such disobedience undermines the democratic regime. These arguments will be discussed in the first section of the article.