Israel, unlike most modern States, does not have a Constitution embodied in a formal document which lays down the basic political assumptions on which the system of government is founded, and which is considered the “supreme law of the land”. The student of Israel's Constitution must, as in the case of the British Constitution, collate his country's Constitution, including its unarticulated “major premises”, from a close study of the practical workings of the system of government and from a number of diverse sources of varying legal force.

From a study of the workings of the system of government, Knesset (Parliament) legislation and the decisions of the courts, it would appear that Israel's courts, lawyers and others have asserted, almost without demur, the doctrine of the legislative supremacy of the Knesset as the underlying unarticulated major premise of Israel's Constitution. In accepting that assumption they seem to have chosen to follow the constitutional trail blazed by their British forerunners. This article is intended to test that assumption and to establish its exact application in the legal system.

The task of the legislator is indeed difficult when he has to consider and decide how far to extend the area to which the criminal law applies. The difficulty is most apparent in those forms of conduct which are seemingly directed towards some individual to whom civil law remedies are available, for then it must be asked whether these remedies are sufficient or if there is good reason for the addition of criminal sanctions.

The usual considerations in this respect are many and various—has the normal victim of the harmful conduct the ways and means himself of resisting it without the assistance of the authorities; does the normal perpetrator of certain kinds of harmful conduct possess sufficient means which enable him to restore the status quo if civilly sued; is conduct of this kind highly frequent; does certain behaviour have a special temptation, which can only be fought by the deterrent force of a criminal sanction; and especially, does the public conscience regard this form of behaviour a serious infringement of public values that justifies and demands public punitive reaction, irrespective of the wishes of the injured person.

The general rule is established that anyone may lawfully be called to give evidence and to produce every document in his possession, unless he can show a just ground for refusal. In a number of instances the law relieves a witness from the duty of replying, or of producing a document. These are exceptional cases, however, and the burden of establishing their applicability lies on the party claiming the exemption. The modern legal tendency is, so far as possible, to restrict the claims of privilege.

Rules of evidence recognize mainly the privilege against self-incrimination, the legal professional privilege, the marital privilege, and “State secrets”, when the Administration objects to the disclosure of information relating to public security, foreign relations or other important public interests. This article deals with the last mentioned privilege—a “thorny topic”, in more than one country. Both case law and doctrinal writings have, over the years, held various views on this problem. In England, the House of Lords' opinion on it has undergone a radical change within the last twenty-five years and it is also under present examination of the Law Reform Committee. The question arose before the Israeli courts on several occasions and the Ministry of Justice drew up three separate bills aimed at its solution, the last of which is now before the Knesset for consideration.

The rise of Zionism, with its call for renewed national political life and return to the national homeland, inevitably evoked a material change in the mental attitude of the Jewish people towards Jewish Law, a law possessing, as I have already said, not merely religious value but also manifest national significance. Thus a movement was mustered of Jewish lawyers and scholars and others from all ranks of society, which regarded the return of Jewish society to Jewish Law a national restoration, parallel with the restoration of the Jewish homeland and the revival of the Hebrew language.

This movement for a restoration of Jewish Law signals also a new trend in its study. From modest beginnings in the 17th century, scientific research into Jewish Law had been occupied with a variety of problems, whether of the parallelism between the Jewish legal system and other systems, the moral and philosophical theories embodied in its institutions and of its vast many-sided historical and literary expression. The common feature in all this research had been that it was pursued for its own sake, for theoretical and not for practical purposes.