bluuebunny/crossref_metadata_2025 huggingface dataset:
Capacities and Inadequacies: A Look at the Two Separation Barrier Cases
Authors: Shany Yuval
Published: February 2016

Comparison between the two decisions of the International Court of Justice and the Israeli Supreme Court on the legality of Israel's West Bank controversial separation barrier illustrates some of the inherent differences between national and international legal proceedings. The note critically assesses these differences and advocates a more comity based framework of cooperation between national and international courts. Specifically, the note argues that the fact-gathering and fact-analysis process demonstrated in the Hague Advisory Opinion is problematic, as were the Court's refusal to show any deference to the Israeli authorities and empathy towards the Israeli public. These deficiencies reduce the persuasiveness of the Opinion and render its acceptance by Israel less likely. At the same time, the failure of the Israeli Supreme Court to address the link between the route of the barrier and the alleged illegality of the settlement detracts from the normative value of the judgment and highlight the political constrains in which domestic courts operate. As a result, resort to a comity-based framework in which the national and international courts strive to draw upon each other's institutional advantages in the fields of fact-finding, compliance-pull and international law expertise would have been beneficial.
The Normative Dimension of International Relations and the Advisory Opinion of the ICJ on the Separation Barrier
Authors: Kacowicz Arie M.
Published: February 2016

In this paper, I address the relevance of the normative dimension of international relations against the background of the Advisory Opinion of the International Court of Justice of July 9, 2004, with reference to the legality of the security barrier/fence being erected by the Israeli government since March of 2002. I examine different approaches to the study of norms in international relations, focusing upon the Grotian approach, which represents a middle ground between the extreme Hobbesian (Realist) and Kantian (idealist) traditions of international relations. According to the Grotian approach, international norms affect the foreign policy of individual countries through their institutionalization in the international society, usually through multilateral instruments of international law. In this sense, both the ruling of the Israeli Supreme Court of June 30, 2004, and the Advisory Opinion of the ICJ of July 9, 2004, represent and reflect those instruments. The International Court of Justice is the major legal institution of the United Nations, which is the embodiment of our international society. Hence, even if its ruling is considered biased or distorted (by Israel), it still carries an important normative and political baggage, by underlining paramount norms such as self-determination and protection of human rights.
The Impact of Economic Theory on the Israeli Case Law on Property
Authors: Lewinsohn-Zamir Daphna
Published: February 2016

The article discusses whether, and to what extent, Israeli case-law in the fields of property law and planning law is influenced by economic-efficiency considerations. The article critically examines three major areas of property law: compensation for injury to lands' development rights, remedies for unlawful building on another's property, and conflicting transactions in land. All three examples illustrate that assessing the impact of economic theory is somewhat complex. On the one hand, judges are increasingly cognizant of the economic approach to law, and some of them tend to include economic-oriented considerations in their reasoning. Judges opposed to efficiency analysis often mention this theory, even if pejoratively, in their rulings. Economic factors cannot and are not ignored. On the other hand, the judges' implementation of the economic calculus is often simplistic or even flawed. Moreover, there sometimes exists an inverse correlation between the identity of the judges most sympathetic to economic reasoning and the identity of the judges who have adopted the most efficient rule.
The Quest for Legitimacy in American Administrative Law
Authors: Breger Marshall J.
Published: February 2016

In the United States, administrative law suffers from a perceived lack of legitimacy largely due to a lack of democratic accountability or what some have called a democratic deficit. These misgivings stem, in part, from a deep-seated American distrust of bureaucracy. This Article examines how the quest for legitimacy has led practitioners (and theorists) of administrative law to undertake four interrelated projects: the Accountability Project, the Rationality Project, the Transparency Project, and the Participatory Project all designed to create a substitute or shadow form of democratic legitimacy.

Through an examination of these projects, I clarify how they try to address the democratic deficit, and whether they effectively do so. Specifically, this article investigates the impact of judicial review, informal rule-making, increased access to information, and public participation as efforts to meet the legitimacy challenge. Moreover, it disputes the contention that the pursuit of democratic legitimacy is less consequential for administrative law than the need for bureaucratic rationality, by illustrating that bureaucratic rationality is but one component of a larger scheme intended to serve as a functional substitute for legitimacy. At bottom, because Americans do not share the fondness for the technocratic model displayed by many other legal systems, legitimacy projects have an enduring place in American administrative law.
Notes on theShari'a: Human Rights, Democracy, and the European Court of Human Rights
Authors: Ramadan Moussa Abou
Published: February 2016

The Turkish Constitutional Court in 1998 questioned whether values such as human rights and democracy are consistent with values raised and supported by the Shari'a. The Court's implicit assumption is that it is impossible to find a concept in Islamic law that respects human rights. With regard to the Shari'a, there are different positions concerning democracy and human rights depending on the legal corpus included in the definition of the Shari'a. The thesis of incompatibility is based on the classical definition of the Shari'a as invariable and unchanging. But once other perceptions of the Shari'a are incorporated, some of these conceptions are compatible with human rights and democracy.
The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict
Authors: Droege Cordula
Published: February 2016

International human rights law and international humanitarian law are traditionally two distinct branches of law, one dealing with the protection of persons from abusive power, the other with the conduct of parties to an armed conflict. Yet, developments in international and national jurisprudence and practice have led to the recognition that these two bodies of law not only share a common humanist ideal of dignity and integrity but overlap substantially in practice. The most frequent examples are situations of occupation or non-international armed conflicts where human rights law complements the protection provided by humanitarian law.

This article provides an overview of the historical developments that led to the increasing overlap between human rights law and humanitarian law. It then seeks to analyse the ways in which the interplay between human rights law and humanitarian law can work in practice. It argues that two main concepts inform their interaction: The first is complementarity between their norms in the sense that in most cases, especially for the protection of persons in the power of a party to the conflict, they mutually reinforce each other. The second is the principle of lex specialis in the cases of conflict between the norms.
Is Justice Relevant to the Law of War?
Authors: Fletcher George P.
Published: February 2016

Intellectual work on the law of war suffers from chronic isolation. The commentators on the Rome Statute are international lawyers who pay no attention to the work either of theoretical criminal lawyers or of the philosophers. The philosophers—Jeff McMahan as an outstanding example—ignore the legal details that dominate the books of the international lawyers. Criminal lawyers have much to contribute to the discussion of international law but they seem not to be interested, and so it goes. Writers with limited audiences, living in closed worlds, are unaware of what they have to learn from those with a different take on the field.
A Pragmatic Objection to Moral Distinctions: A Comment on The Morality and Law of War
Authors: Shany Yuval
Published: February 2016

This comment to Jeff McMahan's thought-provoking contribution does not aim to take issue with the interesting and rather compelling philosophical arguments he raises in support of moral-based norms. In the same vein, the comment does not criticize the way in which McMahan describes the international law doctrines governing war situations—a description which is generally accurate. Instead, I comment on the policy reasons that have led international law-maker to move away from some of the morality-based distinctions and normative choices expounded by McMahan. Hence, my focus in this comment is on the pragmatic constraints that limit the influence of moral ideas on the laws of war. Of course, the resort to pragmatism may be in itself morally justifiable, as the insistence on the application of pragmatic consideration is often linked to the promotion of laudable goals—aversion of war and reduction of casualties and damage. Hopefully, a better understanding of the reasons underlying the rejection of “pure morality” in the context of the regulation of war would contribute to a critical assessment of the desirability of McMahan's ideas and to identification of the institutional conditions that could facilitate their application.
Lesser Evil and Responsibility: Comments on Jeff McMahan's Analysis of the Morality of War
Authors: Segev Re'em
Published: February 2016

The main aim of Jeff McMahan's manuscriptThe Morality and Law of Waris to answer the question: why and accordingly when, is it justified or permissible, to kill people in war? However, McMahan argues that the same principles apply to individual actions and to war. His main claim is that “a state of war… does not call forth a different set of principles, but merely complicates the application of moral principles that are of universal application.” In other words, “…in war, people have the same rights, immunities, and liabilities that they have in other contexts.” McMahan rejects “all doctrines of collective responsibility” and “liability” according to which “individuals can share in responsibility… or liabilitysimply by virtue of membershipin a collective.” His claim is that every individual is liable for what he has done and not for the actions of others—even if both are part of the same collective. Accordingly, McMahan challenges the common view that it is much easier to justify killing in war compared to killing in other contexts. Therefore, the scope of his project exceeds the context of war and extends to interpersonal conflicts between individuals that do not qualify as war. Indeed, McMahan has argued in the past for a similar account of self-defense in the individual context.
Contrasting Approaches to War: Some Thoughts on the Views of Fletcher, Segev, Shany, and Zohar
Authors: McMahan Jeff
Published: February 2016

I am greatly honored that these four distinguished moral and legal theorists, who have all made substantial and important contributions to our understanding of the problems with which I am concerned in my book, have been willing to engage themselves so constructively with my arguments. The published book will be significantly better, or less bad, as a result of my having had to address their challenges. I find myself in substantial agreement with much of what each commentator has to say and concede that on some points they have proven me wrong. But I am obstinate by nature, and perhaps a little obtuse, and thus am prepared to resist some of their suggestions, however sensible they may seem.
Marriage Regulations of the Dead Sea Community
Authors: Falk Ze'ev W.
Published: February 2016

One of the so-called “Damascus Covenant” fragments discovered in Qumran Cave 4 calls for bona fides in negotiations leading to marriage.

The following is Baumgarten's reading of the text and his translation:

4. … And concerning what is said (Lev. 25:14)

5. [“When you sell anything to or buy anything from] your neighbour, you shall not defraud one another,” this is the expli[cation …

6. …] everything that he knows that is found …

7. … and he knows that he is wronging him, whether it concerns man or beast. And if

8. [a man gives his daughter to another ma]n, let him disclose all her blemishes to him, lest he bring upon himself the judgment

9. [of the curse which is said (Deut. 27:18)] (of the one) that “makes the blind to wander out of the way”. Moreover, he should not give her to one unfit for her, for

10. [that is kil'ayim, (plowing with) o]x and ass and wearing wool and linen together (Deut. 22:10–11) …

The first item (lines 4–9) should be read against the background of rabbinical morals extending to the rule of fraud to other forms of injury by word of mouth:

a. Just as a concept of ona'ah (fraud) exists regarding sales, there exists a concept of ona'ah (offence, fraud) by mere speech. One should not ask for the price of goods without having the intention of buying, one should not remind a repentant person of his sinful past or a proselyte of his ancestors' deeds. This was meant by the admonition: “Do not offend or oppress the stranger, for you were strangers in Egypt”.
Proculus v. Labeo
Authors: Hausmaninger Herbert
Published: February 2016

After Felix Wubbe's study ‘Iavolenus contra Labeonem’, any attempt to draw general conclusions from differences of opinion voiced by two classical Roman jurists concerning specific points of law must appear less than promising. According to Wubbe's finding, not even the critical comments which Iavolenus (head of the Sabinian law school) appended to the posthumous works of Labeo (who supposedly founded the rival Proculian school) seem to yield any tangible evidence of methodological or other principles fundamentally distinguishing the two jurists. How then could one expect controversies within one and the same Proculian school, namely the rejection or modification of individual opinions of the jurist Labeo by his successor Proculus, to offer insights of a jurisprudential nature, particularly with respect to the character of the early classical law schools and the so-called school conflict between Sabinians and Proculians?

Reflections of this kind may, indeed, dampen expectations, yet there is little reason to despair. With some patience it should be possible to conduct an analysis of the content and form of Proculus' criticism aimed at Labeo that will lead to observations supporting or amplifiying other information (e.g. concerning the relationship of Celsus to Proculus) and will eventually enable us to draw a broader picture.
A Suggestion on theCollatio
Authors: Pugliese G.
Published: February 2016

1. The collection of Biblical and Roman legal texts, usually calledMosaicarum et Romanarum legum Collatio, has been the subject of countless studies and commentaries since 1573 and particularly in the last 170 years. The serious researches of this second period, starting from 1822, have been carried out by prominent authors and deserve careful consideration. Nevertheless some questions are still unsolved and, above all, new ideas, new viewpoints, new ways of study can be suggested. Of course, I do not intend undertaking such an arduous work in this paper: it is a task for younger and more specialized researchers. As for me, I shall confine myself to the attempt of adding some accuracy to a rough suggestion I put forward on the subject two years ago, while trying to outline a general picture of the relationship between Roman law and legal comparison.
The Ban on Circumcision as a Cause of Bar Kokhba's Rebellion
Authors: Rabello Alfredo Mordechai
Published: February 2016

As far as we can determine from papyri and from Greek and Roman historians, circumcision was practiced among various nations in the Roman Empire, particularly in Egypt and Arabia. A few of the most important examples will suffice.

Herodotus addresses circumcision in Egypt and elsewhere:

… but my better proof was that the Colchians and Egyptians and Ethiopians are the only nations that have from the first practised circumcision. The Phoenicians and the Syrians of Palestine acknowledge of themselves that they learned the custom from the Egyptians, and the Syrians of the valleys of the Thermodon and the Parthenius, as well as their neighbours the Macrones, say that they learnt it lately from the Colchians.
The End of Roman Juristic Writing
Authors: Watson Alan
Published: February 2016

I first met Reuven Yaron in 1958, and we immediately became fast friends. The friendship with him and Shoshana has deepened over the years, and will continue. He and I have frequently read one another's draft papers. I thank him for many years of intellectual and emotional support, and hope he will take pleasure in this offering that he has had no possibility of criticising in advance.

The traditional date for the end of classical Roman law is 235 when the emperor Alexander Severus was murdered, or slightly later with the death of Modestinus, the last of the great known jurists. Thereafter, few original juristic books were written, and it is widely but not universally believed that a decline in legal standards began almost at once.

For many scholars there seems to exist a connection, sometimes simply implicit, between the failure of jurists to write new books, and a decline in legal standards. I should like to suggest there was a different reason for jurists ceasing to write new law books. They had already written them all! The claim that for the period, say fifty years, after around 235, all the law books had already been written seems extreme, but is easy to substantiate.
The Contribution of Jewish Lawyers to the Administration of Justice in South Africa
Authors: Zimmermann Reinhard
Published: February 2016

When I grew up in Hamburg, my home town, I had no Jewish friends or acquaintances. And if I had, I did not notice. Indeed, the very inquiry into whether someone was a Jew would have seemed awkward and inappropriate to me. In 1981 I went to Cape Town, where I was to spend seven years teaching Roman and comparative law. There I had the good fortune to come into contact with a vigorous, selfconfident and highly visible Jewish community. I had Jewish friends and colleagues, Jewish students and team mates. On account of my name I was even sometimes invited, on ceremonial occasions, to the synagogue. I suddenly realized how, for obvious historical reasons, our attitude towards national, racial and religious identity, and towards Jewish identity in particular, has been warped and to what extent we, as Germans, have lost any sense of unselfconscious innocence in these matters. It also struck me how much our culture has been impoverished by the absence of its specifically Jewish ingredient.
Israeli Contract Law — Recent Trends and Evaluation
Authors: Renner Shirley
Published: February 2016

Two questions are central in the law of contracts: first, what are the conditions necessary to the formation of a contract; second, what is the scope of the contractual obligation. The first question deals with the two basic requirements for the formation of a contract — offer and acceptance, whose substantive components are the intention to form a legal obligation and definiteness. It also deals with the substantive requirement of writing, in those classes of contracts in which it is required, and the requirement of consideration, in those legal systems in which it exists. The second question deals with those rules which determine the remedies for breach of contract such as specific performance, damages and restitution. In this article I shall try to identify and evaluate recent trends in Israeli law concerning these questions, as demonstrated by decisions of the Israeli Supreme Court, and to evaluate these trends by measuring their consistency with one another.
The Practice and Case Law of Israel in Matters Related to International Law
Authors: Giladi Rotem M.
Published: February 2016

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

The aim of this section is to acquaint lawyers with the general framework of the Agreement, and the primary legal and political issues dealt with by the Interim Agreement, rather than to describe the specifics of each of its many provisions. Where required, reference will be made to the Declaration of Principles and to previous Agreements concluded between the Parties. At times, reference will also be made to the Camp David Framework of 1978.
The Implementation of Constitutional Reform in the United Kingdom: Principles and Problems
Authors: Oliver Dawn
Published: February 2016

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

In this lecture I want to discuss the process of constitutional reform in the United Kingdom, and to explore some of the difficulties that lie in the way of reform. Some quite radical reforms to our system of government — the introduction of executive agencies in the British civil service, for instance—have been introduced without resort to legislation. There has been a spate of reform to local government and the National Health Service.
Israel's Involuntary Outpatient Commitment Law: Lessons from the American Experience
Authors: Kanter Arlene , Aviram Uri
Published: February 2016

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

Originally enacted in the United States as a condition of release for persons being discharged from mental hospitals, or as an alternative to involuntary hospitalization, involuntary outpatient commitment has now been enacted in various forms in different countries throughout the world. The new Israeli IOC law is modeled after American IOC laws, (particularly those enacted in the early 1980's), which seek to provide involuntary mental health treatment to persons who do not meet a strict test of dangerousness for involuntary commitment.
Aspects of Negligence in Israeli Criminal Law
Authors: Lederman Eliezer
Published: February 2016

The Israel Penal Law, 1977, which is deeply rooted in English common law, contained, until recently, very few definitions of basic criminal concepts. Negligence was one of the definitions lacking. The law seldom used this term explicitly when defining specific offenses in the code. The newly enacted General Part of the Criminal Law, as part of its systematic treatment of essential criminal notions, is the first piece of Israeli legislation to cope with this term.

The various aspects of negligence have been developed in Israeli criminal law since the early 50's, mainly through Supreme Court decisions, first and foremost with reference to negligent homicide. This mode of development of law has inherent limitations, since its shaping depends on occurrences of events and the consequent raising of relevant questions of law in the courtroom. However, in the Israeli case, this evolutionary process has not hindered the development of the status and importance of the said mode of fault.
The Structure of Criminal Liability: Complicity
Authors: Gur-Arye Miriam
Published: February 2016

The notion of “wrongdoing” is not recognized by the Draft Code. Nor does it classify the criminal law defences as either justification or excuse. Rather, the Draft Code distinguishes between “an offence” and “an act”. The term “offence” is used to cover cases where theactus reusis committed with the mental state required by the definition of the offence, by an offender who is criminally liable. An offender who has a defence, even a personal one, such as insanity, mistake, or duress, commits “an act”. The term “act” is used to indicate that defences negate the criminal nature of the act.

I have elsewhere elaborated on the question whether or not a criminal code which aims to reform the criminal law should distinguish between justification and excuse. There I have both discussed and evaluated,inter alia, the proposals of the Draft Code in this context. Therefore, I shall not elaborate on this subject any further. I shall rather focus on the law of complicity and shall discuss three main issues.
Restitution of Victims by the Offenders
Authors: Karp Judith
Published: February 2016

It is with great pleasure that I address you today at this Conference in Jerusalem. I believe that there is a profound symbolic meaning in putting the subject of victims of crime on the agenda of a conference in Israel, the homeland and the state of a people who, throughout history, have experienced much victimization.

Unfortunately, it seems that the historical collective experience of victimization does not necessarily enhance the understanding of the phenomenon of victims of crime — neither that of secondary victimization by the criminal justice system itself nor the responsibility of society to address victims’ needs and problems.

It seems that the criminal justice system in Israel, to a certain extent, is still detached from the victims rights movement which has been developing with growing impact during the last decade in the Western world. It is true that in recent years specific issues concerning victims of crime, such as violence in the family and child abuse, have been a topic of growing interest and action in Israel. As a result, legislation has been passed by the Knesset to deal with these issues and the groundwork for an infrastructure of social services is being laid. However, this does not appear to be a result of a genuine or widespread recognition of the social and legal importance of the commitment which a society should have towards the plight of crime victims. Rather, it seems to be more of a reaction to various political pressure groups.
Collection and Evaluation of Evidence in Comparative Perspective
Authors: Eser Albin
Published: February 2016

When comparing the structure of the criminal procedure in the civil and the common law systems, one is soon confronted with the wide-spread belief of deep differences between the “inquisitorial” tradition on the one hand, and the “adversary” on the other. Consequently, one would expect differences between the Israeli criminal procedure, as mainly based on common law tradition, and the German procedure, as an example of a continental civil law system. If one takes a closer look, however, it appears that those assumptions of deep differences, at least in view of the practical result, are to a great extent mistaken because of foregone prejudices.
The Protection of the Accused from Miscarriage of Justice
Authors: Zuckerman A.A.S.
Published: February 2016

The criminal trial system is regarded as standing at the pinnacle of the state's machinery for dealing with crime. But the courts deal with only a small proportion of crimes committed. Their function is more indirect: to express societal disapproval through a public and somewhat theatrical show. This is not to denigrate the role of the courts or dismiss it as futile. The criminal trial does have important functions in the development of norms for criminal responsibility and in fostering respect for the law. But its success in this regard hinges on the extent to which it is perceived as a just and effective method for dealing with those charged with crime. Put crudely, the success of the criminal justice system turns in large measure in the success of the show it puts on. But theatre is good only for as long as it is able to carry the audience with it, which, in the case of the courts, this means as long as the public is prepared to accept their verdicts at face value.
Miscarriage of Justice and the Right to Representation
Authors: Mann Kenneth
Published: February 2016

In modern criminal procedure it is generally held that reliability of results and basic fairness in criminal trials require that a defendant have legal counsel. Prevention of miscarriage of justice is tied closely, in the minds of policy makers and judges, with vigorous representation by competent counsel. As against these presuppositions how should one understand a modern system of criminal procedure, such as that in Israel, that does not have a broad right of representation for suspects or defendants in criminal cases?

It is by now axiomatic in England and the United States that nearly all defendants in criminal cases have a right to representation. This right encompasses not just the opportunity to bring one's privately retained counsel to court, but also an irrebuttable claim by indigents to have the counsel's bill paid by the state or other public entity. The right to counsel is a broad right, entailing a principle of equality in which representation by counsel is independent of the defendant's ability to pay. In Israel, in contrast, the right to representation in criminal cases is significantly narrower.
Appellate Review of Judicial Fact-Finding Processes and Decisions
Authors: Jung Heike
Published: February 2016

At first glance, appellate control of judicial fact-finding appears to be a precise and nicely circumscribed topic. This impression is grossly deceiving. To begin with, in a comparative context, it is inevitable to hint at the underlying structural features of the German criminal procedure, since appellate control is not a free-floating self-explanatory element of the criminal justice system, but built upon a particular procedural structure. Secondly, the control of fact-finding by the appeal court forms only a small and perhaps even the least important phase of the fact-finding process. Therefore it needs to be located within the larger perspective of the procedural fact-finding process as a whole. Thirdly, it goes without saying that the control process by way of appellate review is largely shaped by the different legal instruments of control. Knowledge of their operation and legal scope with particular emphasis on the fact-finding process cannot be taken for granted, even given an all-German audience.

Fourthly, the appellate control of judicial fact-finding cannot be understood by way of abstract description only: such a description needs to be underpinned by examples. This puts me in a predicament, since the pertinent standards developed by the appellate control amount to no less than an aggregate of the German law of evidence. Hence I have to restrict myself to a few paradigmatic examples hoping that they will reveal the structural pattern if there is one.
The Practice and Case Law of Israel in Matters Related to International Law
Authors: Giladi Rotem M.
Published: February 2016

The case of the Canadian ambassador's residence has been the subject of several court decisions at various instances in Israel. These decisions (as well as others relating to the doctrine of sovereign immunity) have been reviewed in former issues of this section. On June 3, 1997, the Supreme Court, in its appellate jurisdiction, gave its judgment in this case and delineated the application of the international law doctrine of sovereign immunity in Israeli law. In a different case decided on the last day of 1996, the Tel-Aviv District Court was required to rule on the applicability of this doctrine to a civil suit brought against the government of the United States of America. This District Court decision now needs to be examined in light of the recent ruling of the Supreme Court in theEdelsoncase.
The European Court of Justice: Of Institutions and Democracy
Authors: Shapiro Martin
Published: February 2016

The problem of democracy and judicial review is a problem engendered by successful constitutional courts. For where courts are not successful in establishing veto powers over legislation, no problem or only a very limited problem occurs. Of course any court interpreting statutes in the process of applying them does some law making. How much this law making interferes with democracy depends on how easy it is for the legislature to legislate. Where legislatures can amend statutes easily, they can easily correct “errors” of judicial statutory interpretation. Judicial review of the lawfulness of administrative action essentially involves the same power of statutory interpretation with the same potential for legislative correction.

Most of the nations of the world that do not have successful constitutional courts are not democracies. Indeed, no state without considerable claims to democracy has successful judicial review. These facts are clues to the obvious. Constitutional government is limited government. In the real world we do not encounter nondemocratic limited governments although we encounter many shades of more or less democratic, more or less constitutional governments. So there is some affinity between democracy and constitutionalism.
The Practice and Case Law of Israel in Matters Related to International Law
Authors: Giladi Rotem M.
Published: February 2016

For the last two years, a five-party mechanism consisting of delegations of Israel, the United States, France, Syria and Lebanon, charged with implementing an Israeli-Lebanese understanding concerning South Lebanon has been in operation. Away from the public eye, this forum has thus far held around fifty sessions, each of which concluded with the producing of an agreed Report. Despite its limited powers and narrowly defined mandate, the significance of this forum cannot be ignored; its existence and the mode of its operations also gives rise to several important legal questions.

This review will start by describing the historical and legal circumstances leading up to the April 1996 Understanding and the establishment of the Israel-Lebanon Monitoring Group. Thereafter, the operation of the Monitoring Group, its composition, functions, procedure and decision-making process will be presented. Then I will discuss the major legal questions arising from the existence and operation of the Monitoring Group. The documents relative to the work of the Monitoring Group are annexed to this review.
Allies or Subversives? The Judiciary and Democracy
Authors: Fredman Sandra
Published: February 2016

In the search for democracy, are judges allies or subversives? Until very recently, British constitutional law appeared to present a relatively straightforward answer to this perennial dilemma: judges are only allies if their power is clearly subordinate to that of Parliament. In terms of constitutional theory, this faith in the political process and corresponding distrust of the judiciary is expressed through the principle of parliamentary sovereignty. However, the imminent enactment of a Human Rights Act in Britain compels a reconsideration of this response. It is true that the judiciary has always played a significant role in law-making through the common law and statutory interpretation. It is true, too, that non-constitutional judicial review has developed vigorously in the past few decades. Yet it has always been possible to assert, not least by the judiciary, that law-making of this sort is subordinate to parliamentary law-making and is justifiable by and legitimated in terms of parliamentary intent. Parliamentary sovereignty has, of course, been challenged explicitly by membership of the European Union. Faced with the confident assertion by European Community institutions of the sovereignty of European Community law, the judiciary has gradually shifted its allegiance from Parliament and acknowledged the supremacy of EC law in its sphere of operation. This shift of allegiance is revolutionary in one way. Nevertheless, judicial law-making remains subordinate, although to a differently constituted legislature.
Leading Decisions of the Supreme Court of Israel and Extracts of the Judgment
Authors: Gallant Linda , Shalev Gabriela
Published: February 2016

The State of Israel v. Aprofim Housing and Enterprise (1991) Ltd. (1995) 49(ii) P.D. 265

In 1990, following the wave of immigration from the former Soviet Union at the end of the 80's, the Government decided to promote construction of apartments for new immigrants and other persons entitled to government housing aid. A plan was drawn up whereby land would be allocated to contractors for building purposes by the Israel Lands Authority, while the Housing Ministry (hereinafter, “the Appellant”) undertook to purchase the apartments from the contractors after construction.

A standard form agreement was drawn up which served as the basis for the contracts signed between the Appellant and the various building contractors and entrepreneurs. The Appellant undertook in these contracts to purchase from the contractor, upon request, any apartments which had been built but not sold on the open market. In desirable locations, the Appellant was under an obligation to purchase up to 50% of the apartments built. In development areas the Appellant was bound to purchase all of the apartments. The contractor was entitled to demand that the Appellant exercise its obligation to purchase the apartments in the desirable locations, at the earliest, on completion of construction; whereas, in the case of apartments in the development areas the contractor could make its demand on completion of the frame and internal walls of the building. The contract did not limit the time in which the contractor had to present its demand for performance of the obligation to purchase, but any delay in presenting a demand beyond the times stated would influence the contractor's right to receive the full price for the apartments from the Appellant.
The Court, the Ministry and the Law: Awad and the Withdrawal of East Jerusalem Residence Rights
Authors: Herling David
Published: February 2016

In 1988, at the beginning of the Palestinian Intifada, a deportation case came before the Israeli Supreme Court (sitting as a High Court of Justice). The facts of the case presented no great difficulty, but the Court took the opportunity to declare the law governing the previously uncertain residence status of East Jerusalem Palestinians. The judgment of the Court was given by Barak J. In a remarkable passage, the learned judge not only examined the legislatively defined conditions for the loss of permanent residence, but went on to discuss the subsistence and expiry of this status in more fundamental terms, focusing on the “reality” of the licence-holder's presence in Israel. The case thus introduced a second, judge-made test for the loss of permanent residence, which appears to exist in uneasy parallel with the test provided by the legislature. This essay questions the propriety and the quality of Barak J.'s innovation, and examines some of its consequences.
The Old Despotism
Authors: The Rt. Hon. Lord Bingham of Cornhill
Published: February 2016

Seventy years ago there appeared in Britain a series of newspaper articles, which in the autumn of the year were published in book form. To this book the author, perhaps drawing on his earlier career as a journalist, gave a headline-catching title: The New Despotism. In the Richter scale of world events this publication was not, as even the most introverted lawyer would have to acknowledge, the most memorable event of 1929. But on the more specialised Richter scale which measures movements in the landscape of constitutional and administrative law, and standards of judicial conduct, a noticeable tremor was registered. For the author of The New Despotism was Lord Hewart of Bury, who held office as Lord Chief Justice of England, and the book was a coruscating attack on what he pejoratively called the bureaucracy, the great departments of state, whom Hewart accused of acquiring and exercising legislative and administrative powers in a manner which circumvented Parliament, excluded judicial control through the ordinary courts and undermined the rule of law.
Constitutional Adjudication and Democracy
Authors: Grimm Dieter
Published: February 2016

Constitutional adjudication is as old as democratic constitutionalism. But for a long period of time, the United States of America remained alone in subjecting democratic decision-making to judicial review. While constitutions had become widely accepted already in the 19th century, it took almost two hundred years until constitutional adjudication has gained world-wide recognition. In the 19th century, only Switzerland entrusted its Supreme Court with competencies in the field of constitutional law, yet, not including review of federal legislation. All other attempts to introduce constitutional adjudication failed. This is also true for Germany where the constitution of 1849 had provided for judicial review in an ample manner. But the constitution adopted by the revolutionary Paulskirchen Assembly did not enter into force because the monarchs refused their consent after the revolution had been put down.
The Role of Courts in Rifted Democracies
Authors: Gavison Ruth
Published: February 2016

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.
How Effective is Criminal Fine Enforcement in the Israeli Criminal Justice System?
Authors: Einat Tomer
Published: February 2016

Over-burdening of the prison system and serious reservations as to the usefulness of the prison sentence as a means of reducing crimes rates have led penologists and policymakers to seek ways to broaden the repertoire of criminal punishments available to the courts. In the search for effective and affordable sentencing policies, there has been increasing interest in the development and elaboration of intermediate sanctions as part of a menu of sentencing choices that match the severity of punishment to the seriousness of the crime.

This trend is clearly reflected in the development of the penal system in Israel. In elaborating alternatives to imprisonment, an integrated model, incorporating welfare and rehabilitation considerations, has emerged. Nevertheless, Israeli judges have remarkably few sentencing alternatives at their disposal, and the penal sanctions available to them can be counted on the fingers of one hand, namely, imprisonment, suspended prison sentence, probation, community service, and the fine.
Human Dignity and Its Impact on German Substantive Criminal Law and Criminal Procedure
Authors: Lagodny Otto
Published: February 2016

Since 1992, the Basic Law: Human Dignity and Liberty has been in force in Israel. Its purpose according to sec. 1 is: “to protect human dignity and liberty, in order to anchor in a Basic Law the values of the state of Israel as a Jewish and democratic state”. In sec. 2 and subsec. it guarantees: preservation of life, body and dignity (sec. 2); protection of property (sec. 3); protection of life, body and dignity (sec. 4); personal liberty (sec. 5); leaving and entering Israel (sec. 6) and privacy (sec. 7). The guarantees in sec. 2 and subs. might thus be seen as a concretization of art. 1. Here we have already an interesting parallel to constitutional theory in Germany. Human dignity is the article with which our constitution begins. The following guarantees may be seen — asDürigalready pointed out in the 1950's — as an emanation of human dignity with its main aspects of freedom/liberty (Art. 2 German Basic Law [GBL]) and of equality (Art. 3 GBL).
English Criminal Procedure and the Human Rights Act 1998
Authors: Spencer J.R.
Published: February 2016

The European Convention on Human Rights is one of the manifestations of the Council of Europe, an organisation of European states founded in 1949 with the aim of strengthening the common democratic heritage. It is an international treaty which binds the contracting States to respect the list of human rights and freedoms it proclaims. An enforcement mechanism exists in the form of the European Court of Human Rights (in this paper called ‘the Strasbourg court’).

In brief, these rights and freedoms are the right to life (art. 2); freedom from torture or inhuman and degrading treatment or punishment (art. 3); freedom from slavery or forced labour (art. 4); the right to liberty (art. 5); the right to a fair trial (art. 6); freedom from retrospective criminal laws (art. 7); the right to respect for private and family life, home and correspondence (art. 8); freedom of thought, conscience and religion (art. 9); freedom of expression (art. 10); freedom of peaceful assembly (art. 11); and the right to marry and found a family (art. 12). Over the years, this initial list of rights has been expanded by a series of additional Protocols — not all of which have been ratified by all the Member States. The First Protocol, which Britain has ratified, guarantees the right to peaceful enjoyment of possessions, education, and free elections.