There are three constitutional branches: the legislative branch, the executive branch, and the judicial branch, and they are the product of our constitution, our Basic Laws. They are of equal status, and the relationship between them is one of “checks and balances”. This system is designed to assure that each branch operates within the confines of its authority, for no branch may have unlimited powers. The purpose of checks and balances is not effective government; its purpose is to guarantee freedom.

In this system of powers, the task of the judicial branch is to adjudicate conflicts according to the laws. For that purpose, the judicial branch has to perform three principal functions. The first is concerned with determining the facts. From the entirety of the facts, one should determine those facts which are relevant to adjudicating the conflict. The second function is concerned with determining the law. The third function is concerned with applying the law to the facts, and drawing the appropriate judicial conclusion.

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.

In 1982, Canada's written constitution acquired a bill of rights. The Canadian Charter of Rights and Freedoms, 1982 emerged as the product of a prolonged debate as to the propriety and desirability of protecting, by judicial review, an array of constitutional norms as part of the “supreme law” of Canada. The richness of that debate precipitated a new constitutional model that enlisted not only the courts, but the legislature and executive as well, in the project of rights-protection.

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.

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

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

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 — as Dürig already 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).

The extent to which the Roman government which had conquered the Land of Israel (Palaestina) as well as large areas outside of it (collectively termed the Roman Empire) permitted Jewish courts to rule in matters regarding Jews is a question which has attracted relatively little attention. In his fundamental book Les Juifs dans l'Empire Romain the renowned scholar Jean Juster sums up the situation of the Jewish judiciary as such: “After the fall of Jerusalem, the Jews continued to bring their cases not only before Jewish judges (whom it was possible to define as arbiters) but even before actual Jewish courts authorized to judge according to Jewish law and granted authority to do so by the Romans. The Jewish court received the status of a regular court the moment one of the Jewish sides submitted a claim to it, thereby effectively preventing the submission of the case to a rival non-Jewish court. The Jewish court thus received the authority to summon the defendant, to force him to appear, and to ensure that its rulings would be enforced. Its rulings would be recognized by the Roman authorities as coming from legitimate judicial authority”.

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.

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

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

May he rest in peace.

The constitutional aspects of criminal law and criminal procedure only began to receive serious attention in Finland in the 1990s. The remarkable change in legal thinking and practice in this respect was connected to two major legislative reforms: firstly, Finland ratified the European Convention on Human Rights and Fundamental Freedoms (ECHR) in 1990 and, secondly, new provisions on fundamental (basic) rights were incorporated in the Finnish Constitution in 1995. A fully revised new Constitution of Finland was enacted in 1999 (to be entered into force on 1 March 2000), but the substance of fundamental rights and freedoms was confirmed already in the constitutional reform of 1995.

Those aspects had not, however, been completely overlooked before. Most of the relevant human rights treaties were eventually ratified in Finland (e.g., the International Covenant on Civil and Political Rights, CCPR) and, when ratified, they were incorporated into the domestic legal order. Nevertheless, courts or administrative authorities very seldom referred to human rights treaties or constitutional rights before the late 1980s; a tradition of invoking constitutional rights in the courts was lacking. Instead, human rights treaties and constitutional rights were primarily regarded as binding the legislator.

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.

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

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

Foreword: The Jews had been living in Spain since the Roman period, when Spain became part of the Roman Empire. Much later, Spain was conquered by the Visigoths. King Alaric II (484–507) enacted a code based largely on the Theodosian Code (438), namely the Breviarium Alaricianum (506), of which many laws dealt with the Jews. During this period the Visigoths were Arian and their treatment of the Jews was relatively good. In this article I shall examine the way Visigothic Catholic Spain dealt with the Jews and Judaism.

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

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

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

On 15 February 1999, the Director-General of the Israeli Ministry of Foreign Affairs sent a letter addressed to the Heads of the Diplomatic Missions in Israel concerning “recent meetings held by diplomatic representatives in the Orient House in Jerusalem”. This letter noted that under the Israeli-Palestinian agreements, Jerusalem is one of the final status negotiations issues and that as the jurisdiction of the Palestinian Council does not cover Jerusalem, the Council cannot locate its offices in the City. The letter also took the position that holding meetings at the Orient House was “a clear and serious violation” of the agreements. The Heads of the Diplomatic Missions were therefore urged not to encourage or participate in “any such violation” — nor to allow their staff and visitors to do so.

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.