bluuebunny/crossref_metadata_2025 huggingface dataset:
The Right to Leave Israel and its Restriction on Security Grounds
Authors: Zilbershats Yaffa
Published: February 2016

Special Considerations in Striking the Balance Between the Right to Leave and the Interest of State Security

Section 6(a) of Basic Law: Human Dignity and Freedom lays down explicitly that “every person is free to depart from Israel”. By enacting this provision the Knesset followed a long line of cases decided by the Supreme Court of Israel which held that the right to leave Israel is a recognized important right and a basic principle of the Israeli legal system.

Article 6(a) confers the right to leave upon every person both Israeli citizens and foreigners alike. This principle conforms to the norms of various important international human rights instruments that confer the individual's universal right to leave upon a country.

The constitutional protection of this right means that the right cannot be restricted except as provided by law which was intended for a fitting purpose and only to the extent necessary.
Lionel Cohen Lecture: The Content of Fiduciary Obligation
Authors: Birks Peter
Published: February 2016

Fiduciary obligations form a sub-set of those primary obligations the breach of which constitutes a civil wrong. Only by starting from the obligation of the express trustee can one establish a clear picture of their content. ‘Fiduciary’ is one vehicle for exporting incidents of the express trust by analogy. The trustee's obligation differs from other primary obligations in the degree of altruism which it requires. The trustee must not only take care of the interests of another but must do so disinterestedly. This is the third and highest degree of legally obligatory altruism. The question then arises whether the trustee's obligation mutates when imposed on non-trustees. The core obligation never changes. A sub-problem then emerges: Can negligence be a breach of any one of three different primary duties and hence three different wrongs: breach of contract, tort, and breach of fiduciary duty? The last section of the lecture looks for the best way to dispel that illusion.
After the Revolution
Authors: Jacobsohn Gary Jeffrey
Published: February 2016

The man who embraces a new paradigm at an early stage must often do so in defiance of the evidence provided by problem-solving. He must, that is, have faith that the new paradigm will succeed with the many large problems that confront it, knowing only that the older paradigm has failed with a few.

Only a brief interval separated the signing into law of the two Basic Laws of 1992 and the rhetorical elevation of that moment to revolutionary significance. However, use of the term “constitutional revolution” to describe the addition of the Basic Laws on Freedom of Occupation and Human Dignity and Freedom to the corpus of Israeli fundamental law was destined to have more than rhetorical significance. Had the characterization been made by someone other than the next President of the Supreme Court, it might have attracted a modicum of public attention before fading from view, perhaps to be remembered only as a felicitous example of wishful thinking.
The Natural and Probable Consequence Rule in Complicity: Section 34A of the Israeli Penal Law Part I
Authors: Ohana Daniel
Published: February 2016

The rules of criminal law that govern participation in crime often include special provisions with regard to accomplice liability for the commission of collateral offenses by the principal in the course of the unlawful undertaking. While some Anglo-American jurisdictions limit accomplice liability to cases where the commission of the collateral offense is effectively contemplated by the participant, other jurisdictions, including Israel, also provide for punishment of the participant where the collateral offense is reasonably foreseeable. Accordingly, participants are held liable for crimes that are perpetrated incidentally to the commission of the projected crime, on the basis of an objective, rather than subjective, foresight standard. Whether this deviation from the prevalent paradigm of accomplice liability is justified in principle and policy constitutes the main focus of this article.
Fantasies of Liberalism and Liberal Jurisprudence: State Law, Politics, and the Israeli Arab-Palestinian Community
Authors: Barzilai Gad
Published: February 2016

Some thirty years after the Bergman decision, Israel's constitutional structure and legal culture are still not responsive to minority needs or, more broadly, to the social needs of deprived communities. The liberal language and judicial review of Knesset legislation that were empowered by Bergman have not reconciled this problematic discrepancy between jurisprudence and social needs.

The Bergman ruling signified the onset of a new era in Israel jurisprudence — the era of liberalism, in that it generated the notion of judicial counter-majoritarianism as the center, however problematic, of democracy. It was a modest ruling and a careful one, dwelling only on procedural deficiencies as cause for judicial abrogation of parliamentary legislation. Later on, after 1992, and propelled by the spirit of judicial activism, the Supreme Court adopted a more expansive judicial policy. It asserted the need for much more active judicial review of the substance of Knesset legislation and even the possibility of annulling it if it fell within the provisions of the Basic Law: Human Dignity and Freedom and the Basic Law: Freedom of Occupation.
The Status of a Repudiated Spouse: A New Interpretation of Kraeling 7 (TADB3.8)
Authors: Szubin Zvi Henri , Porten Bezalel
Published: February 2016

The longest Elephantine contract is the “document of wifehood” (spr ʾntw) drawn up between Ananiah son of Haggai and Zaccur son of Meshullam. Numbering forty-five lines and measuring 30 cm wide by 92 cm high, it had been cut apart at the time of acquisition and was painstakingly put together, like a jigsaw puzzle, over a long period of time and in stages, both in 1949 by Anthony Giambalvo of the Department of Egyptian Art of the Brooklyn Museum and almost forty years later, in February, 1987, by Porten and Ada Yardeni. It was first published by Emil G. Kraeling in 1953 and then in 1989 by Porten and Yardeni with handcopy. The contract stipulated the terms, rights and obligations, and pecuniary consequences attendant upon the marriage of Ananiah to Jehoishma daughter of Anani son of Azariah and his wife Tamet (TADB3.4:18), formerly handmaiden of Meshullam father of Zaccur (TADB3.3:3, 3.6:2-4). As successor to Meshullam's estate, Zaccur possessed residual rights to Jehoishma and her mother Tamet (TADB3.6:11-15). Since Zaccur provided the dowry and relinquished some of his rights to Jehoishma, it is with him and not with Jehoishma's natural father (Anani son of Azariah) that the contract was drawn up.
Can Law Learn from Social Science?
Authors: Nelken David
Published: February 2016

In this paper I shall be discussing a fundamental problem in the relationship between law and the social sciences. Many social scientists have pointed out that the “pull of the policy audience” in legislative and administrative exercises and the confines of practical decision-making in legal settings can compromise the proper development of academic social science and blunt the edge of political critique. The danger is real enough. But they have given insufficient attention to the opposite concern which will be my topic in this article. Here the charge is that the introduction of social scientific styles of reasoning can have ill effects for legal practice by threatening the integrity of legal processes and the values they embody. How can social scientists be sure that they have properly understood the nature of law or the meaning and point of the legal rules, procedures, and institutions which they attempt to analyze and seek to improve? What warrant can they have that social scientific interpretation, at any level, does not end up creating law in its own image? If this is a genuine risk, what implications follow for the way law should learn from social science? I shall argue that there are no easy answers to these questions even, or especially, where law apparently welcomes contributions from social science.
Magic and Science in Multivariate Sentencing Models: Reflections on the Limits of Statistical Methods
Authors: Weisburd David
Published: February 2016

In the modern age, magic and science are seen to have little in common. Magic is the art of making effects seem real that aren't. Science is concerned with explaining effects that are real through observation and experimentation. Magic is a slight of hand, a manipulation that produces baffling outcomes that we know are illusions, even though we generally have no idea how the magician produces them. Science seeks to understand the underlying principles that govern events using methods that are clearly defined and that encourage replication. There would seem to be little ambiguity as to where magic ends and science begins.
Senior Public Figure Offenders and the Criminal Justice System: The Public's Perception
Authors: Landau Simha F. , Sebba Leslie , Weisbu David L. ,   The Jerusalem Criminal Justice Study Group
Published: February 2016

Public attention is increasingly being focused on law enforcement practices with regard to senior public figures suspected of committing crimes. Indeed, it is only natural for special sensitivity to be shown in relation to the behavior of public figures in general, and senior public figures in particular. Their authority, social connections, and access to material and other state or public resources, locating them with the “power elite” — or at least the “sub-elites”1— provide them with unusual power in modern society. It could even be argued that their position contains a “constant structural temptation” for misuse or abuse of this power. Even if public figures are believed to be honest and of impeccable character, it is clear that they have opportunities for abuse of their authority that must be taken into account by law enforcement agencies. Moreover, public trust is an important asset on the part of public figures and civil servants. Accordingly, it might be argued that the criminal justice system should perceive breaches of this trust as more severe than similar offenses committed by private citizens.
Government Lawyers as Adjudicators:Pre-Petitionsin the High Court of Justice Department 1990-1997
Authors: Dotan Yoav
Published: February 2016

What is the role of government lawyers? Are they merely agents of their client agencies in court, or do they have a broader function within the world of administrative dispute resolution? On the face of the matter, the lawyer within an adversarial legal system is required to present, to the best of her ability, her client's case in court. The lawyer for the government, however, is not just a professional jurist, but also a public official who is committed to the principles of the rule of law and the constitution. Over the last decade, this tension between the loyalty of the public lawyer to her client and her integrity as a legal bureaucrat who forms an essential element in the process of judicial review has drawn the attention of lawyers and legal scholars.

In this article I describe a model of Public Law litigation in which governmental lawyers play a much more complex role than that of solely being legal agents who seek to maximize their client's rate of success in court. This is the case in Public Law litigation in Israel before the High Court of Justice, where the government's lawyers function not only as representatives of their client agencies but also, in some cases, as arbitrators who handle legal disputes without the intervention of the Court.
The Criminal Responsibility of Psychopathic Offenders
Authors: Mei-Tal Maya
Published: February 2016

The main purpose of this paper is, first, to consider the nature of psychopathic personality disorder, and then, to consider the capacity for criminal culpability of psychopaths and whether it is justified to hold them culpable. Initially, a description of the disorder of psychopathy shall be presented, highlighting those character traits deemed relevant for findings of criminal culpability. There follows a brief discussion of the main theories justifying punishment and their position on punishing persons incapable of effective participation in moral reasoning. Lastly, a discussion of the importance for moral condemnation of the capacity to feel empathy and the absence of that capacity in the psychopath, leading to the conclusion that these persons should not be regarded as blameworthy.
Living in Denial: The Application of Human Rights in the Occupied Territories
Authors: Ben-Naftali Orna , Shany Yuval
Published: February 2016

Are human rights norms applicable to occupied territories in general, and to the West Bank and the Gaza Strip in particular? The article examines the controversy that had arisen between Israel and the UN treaty monitoring bodies in relation to this question and critically analyzes Israel's three objections to such applicability: 1) the mutual exclusivity of humanitarian regime and human rights regime in occupied territories, the former being thus the only applicable law; 2) a restrictive interpretation of the jurisdictional provisions treaties; and 3) the lack of effective control in some of the territories. The article posits that the universal object and purpose of human rights treaties, which inform the proper interpretation of their jurisdictional clauses, require their applicability in all territories subject to the effective control of the state parties, as well as to other extra-territorial exercises of government power directly affecting individuals. Consequently, international human rights law and international humanitarian law apply in occupied territories in parallel and not to the exclusion of one another. This position is confirmed by extensive practice of the international human rights monitoring bodies, the International Court of Justice (ICJ), and by some decisions of the Israeli Supreme Court. In conclusion, the paper posits that Israel's refusal to apply the six principal human rights treaties to which it is party to the Occupied Territories is incompatible with its international law obligations and proceeds to propose modalities for the co-application of both human rights and humanitarian law in occupied territories.
Sociological Perspectives on the Origins of Child Abuse Legislation in Israel
Authors: Ajzenstadt Mimi , Cavaglion Gabriel
Published: February 2016

This paper examines the historical background and the social processes that have changed the perception of child abuse in Israel from almost complete lack of awareness to concern and formal societal reaction during the 1990s. The recent emergence of child abuse as a social problem and the consequent actions of scrutiny and surveillance through legislation, law enforcement, punishment and educational prevention is set within the cultural milieu of the past two decades. This sociological analysis shows that there was a gradual transition from a private condition to a public “social problem”. The social actors involved in this process primarily included social workers, professional educators, academics, the daily press, members of Israel's Parliament and law enforcement agents.

For various scholars and professionals, the incident that triggered awareness and concern about child abuse in general and child sexual abuse in particular was the tragic death of young Moran Denemias in 1989. However, in our paper we posit that this single tragic incident in itself did not prompt officials or the general public to view it as part of a larger problem. The general political tendency to overreact to the emerging issue of abuse, and the rapidity with which the Law for the Prevention of Abuse of Minors and Helpless Persons was passed at the end of the 1980s can be explained by a general moral sentiment that matured decades earlier.
The Israeli Unfinished Constitutional Revolution: Has the Time Come for Protecting Economic and Social Rights?
Authors: Rabin Yoram , Shany Yuval
Published: February 2016

This article addresses the constitutional discourse surrounding the status of economic and social rights in Israel. It examines the principal interpretive strategies adopted by the Supreme Court with regard to the 1992 basic laws (in particular, with respect to the right to human dignity) and criticizes the Court's reluctance to apply analogous strategies to incorporate economic and social rights into Israeli constitutional law. Potential explanations for this biased approach are also critically discussed. The ensuing outcome is a constitutional imbalance in Israeli law, which perpetuates the unjustified view that economic and social rights are inherently inferior to their civil and political counterparts, and puts in question Israel's compliance with its obligations under the International Covenant of Economic, Social and Cultural Rights. At the same time, encouraging recent Supreme Court decisions, particularly theYATEDandMarcianojudgments, indicate growing acceptance on the part of the Court of the role of economic and social rights in Israeli constitutional law, and raise hopes for a belated judicial change of heart concerning the need to protect at least a ‘hard core’ of economic and social rights. Still, the article posits that the possibilities of promoting the constitutional status of economic and social rights through case-to-case litigation are limited and calls for the renewal of the legislation procedures of draft Basic Law: Social Rights in the Knesset.
‘A La Recherche du Temps Perdu’: Rethinking Article 6 of the Fourth Geneva Convention in the Light of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion
Authors: Ben-Naftali Orna
Published: February 2016

The comment focuses on the construction of time in the normative regime of occupation. Beginning (in section 2) with a critique of the ICJ's reading of Article 6 of the Fourth Geneva Convention concerning the scope of applicability ratione temporis of the Convention in cases where the duration of an occupation lasts longer than one year, the comment proceeds (in section 3) to argue (a) that the gap between the working assumption informing Article 6 (of relatively short-term occupations) and reality (of prolonged occupations) defines a problem which the Court erroneously construed as a solution; (b) that the problem of prolonged occupation has allowed for the substitution of an indefinite for a temporary duration of an occupation, a move which defies the basic tenets of the normative regime of occupation; and (c) that a proper solution involves the construction of the notion of “reasonable time” into the Fourth Geneva Convention. The comment includes (in section 4) a proposal designed to minimize the temporary/indefinite blurring of boundaries in situations where an occupation has not ended within one year.
The Formal and the Substantive Meanings of Proportionality in the Supreme Court's Decision Regarding the Security Fence
Authors: Cohen-Eliya Moshe
Published: February 2016

In Beit Sourik the Israeli High Court of Justice struck down most of the planned route for the security fence to be established north of Jerusalem. The Court ruled that the military commander did not properly balance the contribution of this route to the security of the State and the extent of the injury to the rights of the Palestinian inhabitants of the area. It was therefore ruled that this route did not comply with the requirement of proportionality in its strict sense. At the same time, the Court rejected the claim of the petitioners that the motive underlying the determination of the fence's route was a desire to establish a border (a political consideration) and not a security consideration.

This article criticizes the Court's line of reasoning. I argue that the Court erred in striking down the planned route of the security fence on the ground of not fulfilling the requirement of proportionality in the strict sense. The vague nature of this requirement may cause judicial decisions to assume a subjective character, thus violating the democratic principle according to which fundamental decisions should be determined by the people's elected representatives. Given the suspicious circumstances that had led to the determination of the fence's route, the Court should have applied a different kind of reasoning. Instead of balancing the State's security issues and the Palestinians rights, the Court should have carefully scrutinized whether the security purpose was authentic. Judicial review, based on these premises, increases governmental transparency and thus better complies with democratic principles.
The International Court of Justice Decision on the Separation Barrier and the Green Line
Authors: Sabel Robbie
Published: February 2016

This Article examines how the advisory opinion of the ICJ on the “Legal Consequences of Constructing a Wall in the Occupied Palestinian Territory” dealt with the status of the territory through which the separation barrier passed and the question of the status of the “Green Line” which delineates this territory.

Israel has accepted that the rules of belligerent occupation are to be applied to the territory, the Court however did not suffice itself with applying the laws of belligerent occupation but chose to follow current UN precedents in the use of the phrase occupied “Palestinian” territory. The Court does not attempt to resolve the dilemma of how the West Bank could be defined as occupied “Palestinian” territory when its status as occupied territory presumably derived from Israel's seizure of the Area from Jordan and a Palestinian State had never existed there, or anywhere.

Although the Court disclaimed any intention of determining boundaries, nevertheless the Court treats the Green Line as Israel s Eastern boundary notwithstanding that neither Israel nor any Arab State recognized it as such. By its decision, the Court apparently however has recognized Israel sovereignty West of the Green Line, including West Jerusalem, perhaps an outcome not foreseen by all who initiated the application to the Court.
Between the Geneva Conventions: Where Does the Unlawful Combatant Belong?
Authors: Zachary Shlomy
Published: February 2016

The growing impact of terrorist acts in the past few years has lead to dramatic changes in the internal laws of the growing number of States that suffer from terrorism, but has also lead to various attempts to adapt international law - more specifically, the International Laws of War - to the new situation or threat, as many perceive it. The Laws of War, like most areas of Public International Law, deal with the relations between nations, while hardly dealing with non-governmental entities like terrorist organisations or the individual terrorist, thereby creating an apparent legal “loophole”. One of the solutions found by States in order to deal, legally, with terrorists, was by defining them “unlawful combatants”.

This essay tries to examine the development of the term “unlawful combatant”, by examining some complications that might occur from the use of the term “unlawful combatant” as an intermediate, new status in international law. By using it as a new status. States try to exclude terrorists from finding protection under the Geneva Conventions, which are intended to safeguard various individuals during armed conflicts. After examining the term “unlawful combatant”, both from an historical and legal aspect, this essay will attempt to show that the existing Laws of War, which acknowledge only two statuses – the ‘civilian’ and the ‘combatant’ – provide a satisfactory solution to the problem of terrorism in its non-governmental sense. After exploring recent policies and legal developments in Israel and the Unites States, countries that use the term “unlawful combatant”, this essay will criticise the ambiguity of these definitions, and point out future problems that might arise from this ambiguity during armed conflicts.
The Politics and Strategies of Defending Human Rights: The Israeli Case
Authors: Meydani Assaf , Mizrahi Shlomo
Published: February 2016

This paper examines the politics of defending human rights, based on Public Choice Theory. Human rights organizations in Israel turn to the court to defend human rights. We argue that this strategy may prove ineffective in terms of defending human rights for the long run for various reasons. First, the politics of defending human rights is very complex where the power circle beside the court and human rights organizations includes also the relations between politicians, bureaucrats and the public. Second, the political culture that has been established in Israeli society since the 1980s is such that relations between citizens and politicians are based on a bottom-up orientation. Thus, norms and social changes can be hardly imposed from top down, but mainly evolve from bottom up. Directing all human rights strategies toward an elitist institution such as the Supreme Court may bear results in the short run but in the long run attitude change as well as policy decisions towards defending human rights are likely to emerge due to demands from society. Third, by empowering the court, human rights organizations disconnect these issues from the vast majority of Israeli citizens discouraging belief change. The paper concludes that defending human rights must include also attempts of mass mobilization which will create the grounds for human rights organizations to turn to the legislative authorities.
Human Rights in Israel
Authors: Barak Aharon
Published: February 2016

This Article discusses the normative basis for the protection of human rights in Israel and discusses various effects of the Basic Law: Human Dignity and Liberty enacted in 1992. The Article points out that this “constitutional revolution” affected not only the judiciary, which enforces the protection of human rights, but both the executive and the legislative branches that have also internalized the constitutional revolution, by carefully evaluating every bill proposed and every other government action to ensure that it passes constitutional muster. Additionally, the Article discusses the effect of the constitutional revolution on public discourse in Israel. A central part of the discussion is devoted to the role of the protection of human rights in the territories occupied by Israel since 1967, and to the role of the protection of human rights during periods of terror activities.
Constitutional Interpretation
Authors: Troper Michel
Published: February 2016

This Article explores the specificity of constitutional interpretation. It cannot be found in its object, but in the quality of the interpreters, the augmentative techniques it applies, and the standards it produces. The interpreters are not only courts, but also non-judicial authorities such as the Executive or the Parliament. Constitutional interpretation by these authorities tends to be exercised collectively. Although the methods that may be used for constitutional interpretation are the same as those used for statutory interpretation, one notices that there is more frequent use of certain types of arguments. But the most important distinctive character of constitutional interpretation lies in the nature of what it produces. Its output is the constitution. This is true first because by deciding what the meaning of the constitutional text is, the interpreter decides on the substance of the constitutional norm. But the interpreter also decides that a particular text, which until the moment of the decision had no legal value or had the value of a statute, has the meaning of a constitutional norm. At the same time he decides that by being a constitutional norm it prevails over other norms and decides what this supremacy entails. It can therefore be said that constitutional interpretation constitutes the Constitution.
Human Dignity in Combat: The Duty to Spare Enemy Civilians
Authors: Benvenisti Eyal
Published: February 2016

An army attacks a neighborhood where the enemy is hiding among civilians. To what extent is the army required to expose its combatants to life-threatening risks in order to spare enemy civilians? This Article seeks to interpret the pertinent standards and rules of international law from the perspective of the principle of human dignity. The human dignity principle informs the interpretation of the law on the conduct of hostilities and provides a built-in mechanism for improving armies' treatment of enemy civilians. It inspires additional remedial and institutional norms that could overcome armies' distrust of each other during the height of battle. The principle of human dignity recognizes a general duty to strive to reduce harm to enemy civilians as well as specific rules against using them as human shields, hostages, or objects for retaliation. This Article concludes that in general there is no requirement to risk combatants to reduce the risk to enemy civilians, although a number of the specific rules do entail the assumption of such risks.
Freedom of Scientific Research and its Restrictions in German Constitutional Law
Authors: Starck Christian
Published: February 2016

The German Constitution guarantees freedom of scientific research. This guarantee raises questions, such as its legal definition and scope, as well as possible conflicts with other constitutional rights. This Article suggests that in order to have normative legal consequences, the constitutional concept of science must have an ethical dimension—the importance of the value of research and research for nonbiased “truth.” Such an ethically-loaded definition of science gives rise to internal restrictions, by placing forgery, manipulation, plagiarism and other forms of improper scientific practice outside the scope of constitutional protection. Restrictions to constitutional protection can also be derived from other constitutional rights, such as the right to privacy, environmental protection, and the life and health of others. Another arguably important restriction is derived from the right to human dignity, particularly as it touches upon biomedical questions of human cloning and embryo research. This paper argues that the Kantian proscription of treating human beings as a means to an end, which lies at the heart of the right to human dignity, imposes significant restrictions on current trends in biomedicine. These restrictions warn against an implicit utilitarianism that devalues the rights of vulnerable human beings.
Enhancing Freedom of Religion Through Public Provision of Religious Services: The Israeli Experience
Authors: Medina Barak
Published: February 2016

This Article challenges the premise that the separation of state and religion is a necessary predicate for religious free exercise. The state's duty to treat people as equals requires it to ensure that all citizens enjoy reasonable access to religious services. Public supply of religious services thus enhances the exercise of freedom of religion. The extent of public involvement in the provision of a religious service is not by itself a sufficient justification for the regulation of the relevant activity. In certain cases, the intervention is justified by reasons that are unrelated to the scope of government involvement. A prominent example is the case of competition between different religious congregations over limited resources, such as space and time at a holy site. Regulation of activity is then required in order to ensure reasonable access. In other cases, the government enhances the powers of religious bodies, and thus generates a concern of religious coercion. In these cases the governmental role may well result in an infringement of religious freedom. However, such a conclusion is not self-evident, and a detailed assessment of the over all effect of the government involvement is required in order to determine whether the involvement—and what type of involvement—is desirable.

These and related arguments are demonstrated through a discussion of the Israeli experience of almost six decades of intensive involvement of a democratic state in supplying religious services. The Israeli case can serve as a thought-provoking hypothetical on the consequences—and thus of the desirability—of adopting a model of extensive establishment of religion(s) by a democratic state.
Hans Kelsen and Political Parties
Authors: Mersel Yigal
Published: February 2016

In 1929, Hans Kelsen published a relatively slim book named On the Essence and Value of Democracy. Surprisingly, only a few segments of it were translated into English. One of the underlying theories elaborated by Kelsen is the need for political parties. Kelsen outlines the main justifications for the existence of political parties as derived from the concepts of liberty, equality, and representation. He concludes that political parties are essential for a modern democracy, and thus the modern state should be a party-state (parteienstaat). The goal of this Article is to outline Kelsen's theory on political parties and understand its historical and theoretical background. Furthermore, it strives to evaluate the relevance of Kelsen's theory on political parties nowadays. Kelsen's work is confronted thus with different parties malfunctioning such as non democratic and self interested parties. Reviewing Kelsen's work, there are also doubts about the proper constitutional status of political parties. Furthermore, there are some interesting possible observations regarding Kelsen's suggestion to recall a representative who shows disloyalty to the party line. This Article will demonstrate that Kelsen's work on political parties was not only innovative, but that it is also relevant to any modern debate about the constitutional status of political parties.
Judicial Review of the Legislative Process
Authors: Navot Suzie
Published: February 2016

Should the process by which laws are enacted affect their legislative validity? This Article attempts to provide a justification for judicial review of the legislative process and suggests that the court should encourage legislative due process. Lawmaking means responsible lawmaking, and the court should thus be able to ensure a minimal due process of lawmaking by reviewing the legislative process. To date the Israeli Supreme Court has refrained from judicial review of Knesset legislation by virtue of flaws in the legislative process. Recently however, Supreme Court judgments seem to have endorsed a form of judicial review of the legislative process, at least de jure. This Article presents the theoretical and comparative frameworks for judicial review of the legislative process and scrutinizes the law in those countries that conduct judicial review of procedurally defective laws together with an examination of the particular features of the rules governing such review. In comparative law, the characteristics of judicial review of the legislative procedures are similar to those manifested in the question of judicial review of legislation, and based on the same premises. In Israel as well, judicial review of legislation is based on the existence of a supreme constitutional norm, of basic rights and fundamental principles. The Article concludes by proposing that the main characteristics of judicial review: constitutionality, proportionality, and restraint should dictate the relationship between the Supreme Court and the Parliament in all aspects of judicial review.
Non-Application of Civil and Political Rights Treaties Extraterritorially During Times of International Armed Conflict
Authors: Dennis Michael J.
Published: February 2016

Do the protections provided by the core international human rights treaties apply extraterritorially, outside the government-governed relationship, during periods of armed conflict and military occupation? The traditional view has been that human rights are essentially applicable in peacetime while humanitarian law (i.e. the law of war) governs situations of armed conflict and military occupation. More recently, a conflicting school of thought, reflected in decisions of the ICJ and the UN treaty bodies, has concluded that the law of war no longer automatically excludes the law of peace. But, while these views are entitled to respect, the international human rights instruments (unlike the regional human rights instruments) do not grant the treaty bodies or any other entity the authority to issue legally binding views on the nature of state obligations under the treaties. Applying the standard rules for treaty interpretation leads to the conclusion that the international human rights treaties apply in the context of armed conflict only with respect to acts of a state's armed forces executed within its own territory.
Parallel Application of International Humanitarian Law and International Human Rights Law: An Examination of the Debate
Authors: Lubell Noam
Published: February 2016

This article provides a critical examination of the debate over the relationship between international humanitarian law and international human rights law. On the question surrounding the very fact of co-application, it appears that the dominant view supports the co-applicability of the two legal regimes. Opinion is however far from settled on the scope of application of international human rights law, especially insofar as it relates to the issue of extra-territorial applicability. The approach taken in the event of co-applying the two frameworks to specific circumstances, and whether and how one is to use the doctrine of lex specialis, reveals further questions in need of coherent answers. Finally, there remain particular areas in which the co-application faces challenges that must be surmounted, if it is to prove a useful approach. These include the issues of the so-called “war on terror,” the distinction between the jus ad bellum and the jus in bello, non-international armed conflicts, and more. Whilst the co-application of the two regimes is now almost undisputed, it appears therefore that obstacles remain that must be dealt with in order for the relationship of the regimes to be of a fully harmonious nature.
A Death in the Family: Codex Eshnunna 17–18 Revisited
Authors: Westbrook Raymond
Published: February 2016

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.
On the Talmudic Prohibition against Giving Gifts to Gentiles
Authors: Ben-Menahem Hanina
Published: February 2016

Examination of the institution of the gift in the Talmud reveals that giving gifts to Gentiles is prohibited. The prohibition is generally believed to be motivated by the desire to restrict social intercourse between Jews and Gentiles. Gift-giving, it is argued, might lead to, or indicate the existence of, overly-close social relations. On this understanding of the institution, then, it is the potential consequences of the gift-giving that are problematic, rather than the act itself. I will argue that this social account of the origin of the prohibition is unsatisfactory, and that while social considerations did play a role, to regard the inhibition of fraternization with Gentiles as the sole or primary factor underlying the prohibition is a facile oversimplification. Further, I will argue that the explanation for the prohibition must be sought in the act itself, rather than in its consequences.
Societas Omnium Bonorum and Dos in Classical Roman Law
Authors: Ankum Hans
Published: February 2016

1. It is with the greatest pleasure that I contribute this paper to this volume published for my dear friend Reuven Yaron. He was one of the very first foreign colleagues whom I invited to give lectures for the students of the Amsterdam Law Faculty some months after my appointment in 1965, and eight years ago Reuven Yaron was a visiting professor at our University for a period of six months. On that occasion he read fascinating papers on Ancient Near Eastern laws and brilliantly participated in my Papinian-seminar, where also other participants such as Eric Pool and Laurens Winkel made numerous astute remarks. I therefore decided to make Papinian's text D. 17.2.81, concerning societas omnium bonorum and dos, the main topic of my contribution to this volume published in honour of Reuven Yaron. However, I found in the Digest-title 17.2 two additional texts by other classical lawyers, viz. Paul and Gaius, in which they also examine problems in connection with societas omnium bonorum and dos (D.17.2.65.16 and D.17.2.66). It is instructive to discuss these three texts together in this paper. In each of the three texts the situation is different. In the cases that Paul and Gaius deal with, it is the husband who, having received a dowry, is a socius omnium bonorum (Situation I). In Papinian's text which is — even for Papinian! — exceptionally rich in legal ideas, the lawyer gives solutions for many legal questions in a situation, wherein a father, being one of two socii omnium bonorum, promised or gave a dowry to his son-in-law on behalf of his daughter (Situation II).
Roman Arbitration: An English Perspective
Authors: Stein Peter
Published: February 2016

In all societies disputing parties have similar reasons for choosing to arbitrate rather than to use the regular legal process as a means of resolving their differences. Arbitration may be conducted in private, so that the publicity inevitably attendant on the public hearing which is part of the regular legal process is avoided. Arbitration may be speedier, since the parties do not have to wait until the court is ready; arbitration will normally be less beset by formalities than the legal process and it may be cheaper. These considerations apply whatever the character of the regular legal process.

During the formative periods of Roman law and English law, however, disputing parties had a particular reason for preferring to arbitrate and that derives from the nature of a legal action in Rome and in England. Both in the classical Roman procedure and in the classical common law procedure the plaintiff was constrained to bring his claim within one of a number of specified forms of action. These forms of action were set out in the praetor's edict in Rome and the Register of Writs in England. They specified the circumstances in which a legal action could be brought, and directed the plaintiff to the appropriate formula or writ which was required to set the action on the way to a trial.
Conclusion and Publication of International Treaties in Antiquity
Authors: Ziegler Karl-Heinz
Published: February 2016

1. The Vienna Convention on the Law of Treaties of 1969 has defined in its art. 2 the international treaty as an international agreement between states concluded in written form. Only in art. 3 the said Convention makes clear that other international agreements might be valid, too. The United Nations Charter art. 102 ensures that international treaties concluded by the member states are registered and published by the Secretariat of the United Nations. These rules and the practice of our actual Law of Nations are the results of a complicated development which has its origins in antiquity. From the early beginnings in the third millenium B.C. until the 16th century A.D. we can observe that international treaties, in spite of their being reported, registered and passed on in written form, are concluded not through written instruments, but through declarations of the treaty-making parties, solemnly confirmed by mutual oaths. We shall not delve into the history of medieval and modern international law but limit our observations to the legal history of preclassical and classical antiquity, which Reuven Yaron has enriched by so many important contributions.
In Our Image: Colonial Discourse and the Anglicization of the Law of Mandatory Palestine
Authors: Likhovski Assaf
Published: February 2016

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.
Balancing Union and Individual Rights in Israeli Collective Bargaining: Job Security and the Reinstatement of Wrongfully Dismissed Employees
Authors: Schreiber Herbert
Published: February 2016

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 aspecialcollective agreement between a labor organization and a single employer or in ageneralcollective agreement between a labor organization and an employers' association,onelabor 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.