This being a presentation of a legislative enactment, not explanatory notesor a commentary on its provisions and certainly not a theoretical,comprehensive analysis of the topics considered therein, it is bound to bemost concise and selective. The reader will thus encounter below a briefreference to the main subjects dealt with by the Proposal, with emphasis onthe significance of proposed solutions.

The reasons why Israel requires a new penal code, generally, and, for astart, its Preliminary and General Parts, in particular, are inherent bothin the process whereby the existing Law has developed, and the quality ofthat Law.

Israeli criminal law suffers from old age. Its direct source is the CriminalCode of Cyprus of 1928; the latter having been copied, with certain changes,from the Queensland Code of 1899, which for the most part reflected thejudicial decisions of English common law, some of which were formed manyyears previously, and are largely outdated. Scientific standards havechanged and progressed.

The purpose of this short essay is to examine how the constitution could contribute in the area of substantive criminal law. We should distinguish between two levels: the theoretical level and the realistic level. From a theoretical point of view, a lot could be expected from judicial review. The reason is the very broad gap between the principles of criminal law and the norms and real life of criminal law. Judicial review can function as a guardian — perhaps the guardian of the principles of criminal law.

To exemplify the gap between criminal law in theory and criminal law in practice, it is sufficient to mention three issues: Criminal law in theory is an instrument of last resort, but the reality of criminal law is that it is often an instrument of first resort. Secondly, in theory, the most basic principle of criminal law is the principle of legality, of prior warning, but when we read the statutory provisions of criminal law we understand that the citizen is not the real addresee of these norms. When we read case law in criminal law, we find out that real interpretation in criminal law has very little to do with prior warning.