The subject upon which I have been invited to address you is a gloomy one. There is little pleasure to the speaker in recounting a catalogue of failures. The hope is that you may be able at the end to say “Thank goodness we have done better than the British”, or even, perhaps, “The British have made that mistake, we can avoid it”. In other words, a free and candid exchange of views never does any harm.

Thirty-five years ago were stirring times for Israel. For us too, in Great Britain, in a more mundane way. Some of us were exchanging flying helmets for barristers wigs. There was new hope in the air. Social injustice would be a thing of the past. No one would go hungry. No one would go short of medical attention through lack of money, involuntary unemployment would no longer mean that a man's family would go short of food and the other necessities of life.

The Coptic-Ethiopian case is the first dispute between Christian Churches over their rights in the Holy Places to come before the Supreme Court of Israel. It concerns only a small area, but the legal issues involved are far-reaching. They deal with the jurisdiction over Holy Sites, and therefore affect potentially all Christian communities which claim rights in the Sanctuaries.

The history of the jurisdiction over the Holy Places is dramatic and rich in contradictions. For many centuries control over the Sanctuaries was in the hands of Moslem rulers who decided disputes according to their discretion. In view of the widespread impact of these decisions on the Christian world as a whole, the tendency gradually developed to avoid all changes, and in 1878 the Treaty of Berlin suspended every jurisdiction by its Art. LXII which prescribed “that no alteration can be made in the status quo in the Holy Places”.

Legal procedure does not enjoy great popularity. The layman resents it, since it prevents him from conducting his case by himself and forces him to resort to professional advocates. But even the jurist's attitudes to procedure is far from positive: he sees it as a mere “adjective” branch of the law that detracts from the importance of “substantive” law. Moreover, it has often emerged that the labyrinth of procedure does not lead to the triumph of the substantive law, but rather to the perversion of justice. A person expert in procedure has, as it were, wide scope in which to prevent, or, at least to distort, the revelation of the truth.

From time to time, a judge may be heard speaking out against such abuse of legal process, but mostly, his is a voice crying out in the wilderness.

The issue of capital punishment is a very wide one; it has been discussed for centuries by philosophers, theologians, legal scholars, social scientists and reformers of all kinds. These discussions have involved a variety of types of reasoning: some are purely theoretical, some are highly technical, statistical or, at a further remove, methodological analyses. But they have always revolved around a simple, basic question: for or against? This is basically a moral question; because of its general character, because it has to do with moral considerations of a rather general nature for abolishing or retaining a legal institution, it also presents a problem for moral and legal philosophy.

We shall begin this paper with a few general remarks on the development of advocacy from the time of classical Greece through to Rome. It was the esteemed jurists of these societies who, in their work, provided the basis for the development of European and modern law.

Creativity in Greek humanistic literature reached a peak prior to the Peloponesian war; thereafter, it exhibited a marked decline in all but one field, that of rhetoric, or the school of oratory. In this field, particularly in the context of political-jurisprudential literature, the development was impressive.

Around the middle of the fifth century B.C.E., the Sophists (“Sophist” means “clever” in Greek) appeared in Greece. These were the teachers of wisdom and higher education in all the fields of science and humanities then known in Greece, such as mathematics, astronomy, philosophy and logic, and of course, literature and linguistics. The Sophists wandered from city to city and spread their teachings; they have been described by some as “itinerant universities”.

The enactment of the Trust Law, 1979, not only introduced the institution of trusts into Israeli law with complete and final validity, but it also focussed current legal attention on the primary duty derived from the function of the trustee, i.e. the duty to act loyally. The word “trust” denotes the institution, but it is also an expression of the nature of the relationship between trustee and beneficiary: a personal relationship based on mutual trust. The obligation to act loyally, which will henceforth be called the “fiduciary obligation” arose from the English institution of trusts, but was not confined by its bounds. It spread to a variety of relationships to which English law applied “fortified” norms, more demanding and more strict than those prevailing in the regular course of commerce.

In this article we will attempt to clarify a number of basic constitutional principles as they are reflected in the Israeli system of civil procedure. In so doing, we do not purport to be exhaustive as to the constitutional principles discussed. Rather, we will be selective, and shall place our emphasis on those principles that are most basic to the Israeli system. First, however, we must briefly describe the Israeli constitutional structure. Israel has no written constitution. Nor do any of the Basic Laws, which have a quasi-constitutional standing, specifically treat the issues discussed in this article. Yet, this does not mean that constitutional principles do not influence civil procedure in Israel.

First, it should be noted that many constitutional principles, in the broad meaning of this term, i.e., fundamental, structural principles, are embedded in positive Israeli legislative provisions, both of primary and of secondary legislation.

A cursory examination of the Talmudic sources relating to circumvention of the law is sufficient to show that two approaches exist, one affirmative and permitting it and one negative and forbidding it. “A person may contrive to bring his produce in whilst still in its chaff so that his animal may eat it without its becoming liable to tithe”. “A person may contrivingly mix his grain with stubble in order to exempt it from tithe”. There are many similar dicta. On the other hand, for example, in the Tosefta Taharot we find in a number of matters “provided he does not act contrivedly for if he does they are impure”.

Can these sources be reconciled to give a more or less clear picture of the way in which the rabbis approached the question of circumvention of the law? Rosh (R. Asher b. Yehiel, Germany, Spain c. 1250–1327), for instance, conscious of the attendant difficulties, observed with regard to rules of rabbinical provenance: “Not every circumvention… is the same. Some are generally permitted… Others are permitted only to students of the law… Still others are entirely forbidden and the rabbis treat them more rigorously than deliberate acts… And then there are those over which opinion is divided”. Rosh thus sets out the problem but suggests no solution. In the view of the present writer the sources lend themselves to systematic explanation which rebuts the remark of Rashba (R. Solomon Ibn Abraham Adret, Spain c. 1235–1310) that no two cases of circumvention are alike.

The Companies Ordinance (Amendment) (No. 17) Law, 1980, (hereinafter referred to as Amendment no. 17) has fundamentally reformed the legal status of the objects clause of a company memorandum. It is no exaggeration to say that this amendment constitutes the greatest reform effected in company law in Israel up to the present day.

English Common Law regarded the objects clause as defining the capacity of the company, and not only the powers of those acting on its behalf. This approach, formulated at a time when it was impossible to alter the objects clause of the memorandum persisted even after the English legislature relented somewhat and permitted the objects to be altered, albeit with certain restrictions and according to a special procedure. This is still the approach in England today: the objects of the company are viewed as determining its capacity, and therefore, an act done in deviation from the objects is considered void, and cannot be ratified by the company, even if all the members wish to do so. At the same time, the European Communities Act 1972, affords protection to people transacting with the company in good faith, even in the case of a deviation from the objects (sec. 9(1)).

The question of differentiating between an employee and an independent (self-employed) person has always been of primary importance in Israeli Income Tax law as a result of the various rules that distinguish these two types of assessees. In light of the adoption of the Ben-Shahar Commission's recommendations, this distinction has acquired even greater importance, as shall be explained.

This article discusses the law as it stands at present, which is not to say that in our view the current law is ideal. On the contrary, it is our opinion that the distinctions between the employed assessee—employee— and the independent assessee—self-employed—ought to be abolished. However since Israeli law does draw such distinctions at present, we shall discuss what is, de lege lata, and leave the discussion de lege ferenda for another time.

The Penal Law, 1977, enumerates no less the sixteen offences containing, in one form or another, the element of threat.

Sometimes, threat is the only form taken by the behavioural element of the actus reus, but frequently it appears as an alternative to the use of force or to other forms of behaviour, such as fraud.

The reason for the multitude of offences of threat is primarily historical, and to a certain extent, the lack of methodical thought in this area.

It would seem to us that the legislator, the courts and scholars who deal with offences of threat must clarify their own basic concepts and must be aware of decisions on the questions of policy confronting them: this would result in an elimination of the duplication, the disappearance of superfluous offences from the law books, and would prevent the confusion sometimes reigning in this area at present.

There is, however, no formal sanction—statutory or in the regulations, for enforcing this rule. The lack of formal restrictions on the matter of compulsory attendance expresses itself not only in the absence of a statutory quorum, but in a positive fashion as well, in the rule embodied in sec. 24 of the Basic Law: The Knesset, whereby “The Knesset shall hold debates and pass decisions, whatever the numbers present“. Recently, this section was amended: on July 16, 1980, the Knesset approved the addition of the words, “if there is no contrary provision on this matter in another law” at the end of the section. The amendment was not designed to change the existing legal position, according to which a statutory quorum is not required, but only to open the symbolic door to a future change and to rectify the imprecisions in the law as it was formulated. In the body of the law in which we find exemptions from a compulsory quorum, there are three sections entrenched against amendment by a simple majority or an accidental majority, and they may only be amended by an absolute or special majority at the time of the vote.